Vertical APS, LLC - Standard Terms and Conditions
1. INTRODUCTION. In this Standard Terms and Conditions ("Agreement"), "you" and "your" refer to each customer ("Customer") and its agents, including each person listed in your account information as being associated with your account, and "we", "us" and "our" refer collectively to Vertical APS, LLC and its wholly-owned subsidiaries ("Vertical APS"). This Agreement explains our obligations to you, and your obligations to us in relation to the Vertical APS service(s) you purchase. By purchasing Vertical APS service(s) you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional Vertical APS service(s) or to modify or cancel your Vertical APS service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, you agree that each person listed in your account information as being associated with your account for any services provided to you (including, but not limited to, domain name registration services) is your agent with full authority to act on your behalf with respect to such services in accordance with the permissions granted, and that the Primary Contact and Account Administrative Contact for your account shall have the authority, without limitation, to terminate, transfer (where transfer is permitted by the Agreement), or modify such services or your account information, or purchase additional services. Any acceptance of your application(s) or requests for our services and the performance of our services will occur at our offices in Bradenton, Florida, the location of our principal places of business. Except as otherwise expressly set forth in this Agreement, you agree that if you list, directly or by default, Vertical APS as a contact for your account and/or any of the services in your account, we have the right, without notice, to remove our name and/or information from any such account or service and to replace the same with the name and/or information provided by you for any other contact associated with that account or service.
2. VARIOUS SERVICES. Sections 1 through 30 apply to any and all Vertical APS services that you purchase. The terms and conditions set forth in Schedules A through S of this Agreement apply only to customers who have purchased the Vertical APS services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 30 and the terms of Schedules A through S, the terms of Schedules A through S shall control with regard to the applicable Vertical APS service. IMPORTANT NOTICE CONCERNING BUNDLED SERVICES: If you purchase Vertical APS services that are sold together as a "bundled" package (e.g., you select a Web Site package that includes both a domain name and a Vertical APS Web Site, as opposed to your purchasing such services separately), termination of any part of the services will result in termination of all Vertical APS services provided as part of the bundled package. Please see Section 10(d) of this Agreement for more information.
3. FEES, PAYMENT AND TERM OF SERVICE. As consideration for the services you purchased, you agree to pay Vertical APS the applicable service(s) fees set forth on our Web site at the time of your selection, or, if applicable, upon receipt of your invoice from Vertical APS. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of Schedules A through S. If you qualify, we may extend payment terms to you under our Business Account Credit Program. Unless otherwise specified herein or on our Web site, each Vertical APS service is for a one-year initial term and renewable thereafter for successive one to ten-year terms, as set forth during the renewal process. Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal and in the case of domain name re-registration, the domain name registry's acceptance of your domain name registration. Except with respect to service to which you subscribe on a monthly basis, we will endeavor to provide you notice prior to the renewal of your services at least fifteen (15) days in advance of the renewal date. Additional payment terms may apply to the Vertical APS services you purchase, as set forth in the applicable Schedules to this Agreement. We may provide you with an opportunity to "opt in" to our automatic renewal process in accordance with the instructions (and subject to your agreement to the terms and conditions pertaining to that process) on our Web site. You agree that if you use of our auto-renew service, we will attempt to renew your service approximately sixty (60) days prior to its expiration, for the same term then-currently in place for the service, and at the then-current price for the service. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then-current term of the service, and that we are authorized to charge your credit card on file for the renewal of the service(s). In any event, you are solely responsible for the credit card information you provide to Vertical APS and must promptly inform Vertical APS of any changes thereto (e.g., change of expiration date or account number). In addition, you are solely responsible for ensuring the services are renewed. Vertical APS shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services. In order to process a renewal under our auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting our auto-renew service, you acknowledge and agree that we may share your credit card information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date and account number. You agree to pay all value added, sales and other taxes (other than taxes based on Vertical APS income) related to Vertical APS services or payments made by you hereunder. All payments of fees for Vertical APS services shall be made in U.S. dollars. Set up fees, if any, will become payable on the applicable effective date for the applicable Vertical APS services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less.
4. ACCURATE INFORMATION. You agree to: (1) provide certain true, current, complete and accurate information about you as required by the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate. We rely on this information to send you important information and notices regarding your account and our services. You agree that Vertical APS (itself or through its third party service providers) is authorized, but not obligated, to use Coding Accuracy Support System (CASS) certified software and/or the National Change of Address program (and/or such other systems or programs as may be recognized by the United States Postal Service or other international postal authority for updating and/or standardizing address information) to change any address information associated with your account (e.g., registrant address, billing contact address, etc.), and you agree that Vertical APS may use and rely upon any such changed address information for all purposes in connection with your account (including the sending of invoices and other important account information) as though such changes had been made directly by you.
5. PRIVACY. Our privacy statement, for Web sites and/or value added services purchased through Vertical APS is located on our Web site and is incorporated herein by reference, as it is applicable to such Web site purchases and other services purchased through Vertical APS, including, but not limited to, domain name registrations. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site at least thirty (30) calendar days before it becomes effective. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us except as otherwise expressly provided in one or more of the Schedules attached hereto. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Vertical APS services identified herein ("Vertical APS Intellectual Property Rights") are owned by Vertical APS or its licensors, and you agree to make no claim of interest in or ownership of any such Vertical APS Intellectual Property Rights. You acknowledge that no title to the Vertical APS Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Vertical APS or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Vertical APS and all right, title and interest in and to each such Derivative Work shall automatically vest in Vertical APS. Vertical APS shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY VERTICAL APS SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL VERTICAL APS, ITS LICENSORS AND CONTRACTORS (INCLUDING THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM VERTICAL APS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF VERTICAL APS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN VERTICAL APS'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Vertical APS and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or your Vertical APS web site; (8) loss or liability from your inability to use our e-mail service, web site manager service or any component of the subscription service (for websites from Vertical APS); (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your domain name record or your agent's failure to pay any fees, including the initial registration fee or re-registration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, xkms, or any other standard not under Vertical APS sole control.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER VERTICAL APS NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE OR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
9. INDEMNITY. You agree to release, indemnify, defend and hold harmless Vertical APS and any of our (or their) contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Vertical APS services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the service(s) provided, (e) any information or data you supplied to Vertical APS, including, without limitation, any misrepresentation in your application, if applicable, (f) the inclusion of meta-tags or other elements in any website created for you or by you via the Vertical APS services, or (g) any information, material, or services available on your licensed Vertical APS Web Site . When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Vertical APS services, with counsel of our choice at our own expense. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to Vertical APS for any reason.
b. By Us. We may terminate this Agreement or any part of the Vertical APS services at any time in the event you breach any obligation hereunder, fail to respond within ten (10) calendar days to an inquiry from us concerning the accuracy or completeness of the information referred to in Section 4 of this Agreement, if we determine in our sole discretion that you have violated the Vertical APS Acceptable Use Policy, which is located on our Web site at http://www.verticalaps.com and is incorporated herein and made part of this Agreement by reference, or upon thirty (30) days prior written notice if we terminate or significantly alter a product or service offering.
c. Effect of Termination. Vertical APS will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by Vertical APS, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees (in the case of a monthly or annual subscription being paid over time, as provided in various Schedules below). If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs Vertical APS incurs in closing your account. You agree to pay any and all costs incurred by Vertical APS in enforcing your compliance with this Section. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information related to you on the Vertical APS service, if applicable. In addition to the terms set forth herein, certain Vertical APS services may have additional terms regarding termination, which are set forth in the applicable Schedule.
d. Effect of Termination of Bundled Services. In addition to the terms set forth in subsection 10(c) above, if you purchase Vertical APS services which are sold together as part of a "bundled" package of services, any termination relating to such bundle will terminate all Vertical APS services included in such bundle. For instance, any domain name registered with or maintained by Vertical APS under this Agreement (but not including any domain names you may have registered, either with Vertical APS or a third-party registrar, separately and not as part of a bundled service) will be cancelled and may thereafter be available for registration by another party. Upon the effective date of termination, Vertical APS will no longer provide the bundled services to you, any licenses granted you shall immediately terminate, and you shall cease using such services immediately; provided, however, that we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow you to convert certain services included in the bundled services to stand alone services.
11. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither your registration nor use of the any of the Vertical APS services nor the manner in which you intend to use such Vertical APS services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your domain name registration record, (iv) you are of legal age to enter into this Agreement (or you are at least 13 years of age and have your parents' permission to apply for services hereunder); and (vi) you agree to comply with all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on Vertical APS Web sites, or upon notification to you by e-mail or United States mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Vertical APS services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of Vertical APS is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS. To access or use the Vertical APS services or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or passphrase. You authorize us to process any and all account transactions initiated through the use of your password and/or passphrase. You are solely responsible for maintaining the confidentiality of your password and passphrase. You must immediately notify us of any unauthorized use of your password or passphrase, and you are responsible for any unauthorized activities, charges and/or liabilities made through your password or passphrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or passphrase.
14. AGENTS. You agree that, if your agent, (e.g., your Primary Contact or Account Administrative Contact, Internet Service Provider, employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the domain name dispute policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
16. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to refuse to register your chosen domain name, issue you a digital certificate, or register you for other Vertical APS service(s), or to delete your chosen domain name within the first thirty (30) calendar days from receipt of your payment for such services. In the event we do not register your chosen domain name, issue you a digital certificate, or register you for other Vertical APS service(s), or we delete your chosen domain name or other Vertical APS service(s) within such thirty (30) calendar day period, we agree to refund any applicable fee(s) you have paid. You agree that we shall not be liable to you for loss or damages that may result from our refusal to register your chosen domain name, refusal to issue a digital certificate, the deletion of your chosen domain name or refusal to register you for other Vertical APS service(s).
17. NOTICES AND ANNOUNCEMENTS. . (a) Except as expressly provided otherwise herein, all notices to Vertical APS shall be in writing and delivered via overnight courier or certified mail, return receipt requested to Vertical APS, LLC, Attention: Legal Department, 1401 Manatee Avenue, Suite 910, Bradenton, Florida 34205. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to this Agreement) or to any e-mail address associated with your domain name registration(s) with Vertical APS. (b) You authorize us to contact you as our customer via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, e-mail or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.
18. SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
19. ENTIRE AGREEMENT. You agree that this Agreement, the rules and policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the Services.
20. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to resell any of the Services without Vertical APS prior express written consent.
21. GOVERNING LAW.
a. Except as provided in Section 21(b) below, and as set forth in Schedule A, Paragraph 7, concerning domain name disputes brought by a third party, you and Vertical APS agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of Florida, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for Bradenton, Florida for any disputes between us under or arising out of this Agreement. If there is no jurisdiction in the United States District Court for Bradenton, Florida for any disputes between us under or arising out of this Agreement you and we agree that jurisdiction shall be in the courts of Manatee County, Bradenton, Florida.
c. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
d. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
22. AGREEMENT TO BE BOUND. By applying for a Vertical APS service(s) through our online application process or otherwise, or by using the service(s) provided by Vertical APS under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
23. INDEPENDENT PARTIES. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
24. WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Vertical APS. The remedies of Vertical APS under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
25. EXPORT RESTRICTIONS. You acknowledge and agree that you shall not import, export, or re-export directly or indirectly, any commodity, including your products incorporating or using any Vertical APS services in violation of the laws and regulations of any applicable jurisdiction.
26. U.S. Government Users. In the event any software is provided by Vertical APS to a U.S. Government User, the software and accompanying documentation which are used as part of the Vertical APS service are "commercial items," as such terms are defined at 48 C.F.R. 2.101 (Oct 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (Jun 1995), all U.S. Government entities acquiring the use of the Service and accompanying documentation shall have only those rights set forth herein.
27. FORCE MAJEURE. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Vertical APS may immediately terminate this Agreement.
28. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
29. SURVIVAL. In the event this Agreement terminates as provided herein, Sections 1, 2, 3, 6, 7, 8, 9, 10(c), 10(d), 14, and 17 through 29 of this Agreement shall survive such expiration or termination.
SERVICE SPECIFIC TERMS: The following terms apply in addition to Sections 1 through 30 only if you have purchased the particular service described:
SCHEDULE A TO VERTICAL APS STANDARD TERMS AND CONDITIONS
ADDITIONAL TERMS APPLICABLE TO REGISTRANTS OF DOMAIN NAMES
1. Security. Vertical APS does not guarantee the security of your domain name registration records, and you assume all risks that the password and/or passphrase you select may be compromised as a result of fraudulent, unauthorized or illegal activity.
2. Fees and Payment. Initial domain name registrations, and domain name registrations that have passed the registration agreement’s anniversary date, must be in a paid status to transfer, delete, modify, or otherwise to request Vertical APS to affect the domain name record or to provide domain name services. Domain name registrations in an unpaid status are routinely deleted on a regular basis.
3. Transfers and Licensing of Use. You agree that you may not transfer your domain name registration to another domain name registrar during the first sixty (60) days from the effective date of your initial domain name registration with us. You may transfer your domain name registration to a third party of your choice, subject to the procedures and conditions incorporated herein by reference. Even if you license the use of our domain name registration services to a third party, you remain responsible for complying with all terms and conditions of this Agreement, and you accept liability for harm caused by such licensee’s wrongful use of our domain name registration services, unless you promptly disclose the identity of such license upon request by any person who provides reasonable evidence of actionable harm.
4. Vertical APS’s Disclosure of Certain Information. Subject to the requirements of our privacy statement, in order for us to comply the current rules and policies for the domain name system, you hereby grant to Vertical APS the right to disclose to third parties through an interactive publicly accessible registration database the following mandatory information that you are required to provide when registering or reserving a domain name: (i) the domain name(s) registered by you; (ii) your name and postal address; (iii) the name(s), postal address(es), e-mail address(es), voice telephone number and where available the fax number(s) of the technical and administrative contacts for your domain name(s); (iv) the Internet protocol numbers of the primary nameserver and secondary nameserver(s) for such domain name(s); (v) the corresponding names of those nameservers; (vi) the original creation date of the registration; and (vii) the expiration date of the registration. You also grant to Vertical APS the right to make this information available in bulk form to third parties who agree not to use it to (a) allow, enable or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via telephone, facsimile, or e-mail (spam) or (b) enable high volume, automated, electronic processes that apply to our systems to register domain names.
5. Domain Name Dispute Policy. If you registered a domain name through us, you agree to be bound by our current domain name dispute policy that is incorporated herein and made a part of this Agreement by reference. The current version of the domain name dispute policy may be found at our Web site: <replace> http://www.netsol.com/en_US/legal/dispute-policy.jhtml.
6. Domain Name Dispute Policy Modifications. You agree that we, in our sole discretion, may modify our dispute policy. We will post any such revised policy on our Web site at least thirty (30) calendar days before it becomes effective. You agree that, by maintaining the reservation or registration of your domain name after modifications to the dispute policy become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us.
7. Domain Name Disputes. You agree that, if your use of our domain name registration services is challenged by a third party, you will be subject to the provisions specified in our dispute policy in effect at the time of the dispute. For any dispute with, or challenge by, a third party concerning or arising from your use of a domain name registered with us or your use of our domain name registration services, you agree to submit to subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Eastern District of Virginia, Alexandria Division and the courts of your domicile. You agree that in the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions set forth below in this Agreement. If we are notified that a complaint has been filed with a judicial or administrative body regarding your use of our domain name registration services, you agree not to make any changes to your domain name record without our prior approval. We may not allow you to make changes to such domain name record until (i) we are directed to do so by the judicial or administrative body, or (ii) we receive notification by you and the other party contesting your registration and use of our domain name registration services that the dispute has been settled. Furthermore, you agree that if you are subject to litigation regarding your registration and use of our domain name registration services, we may deposit control of your domain name record into the registry of the judicial body by supplying a party with a registrar certificate from us. You agree that we will comply with all court orders, domestic or international, directed against you and/or the domain name registration.
8. No Guaranty. You agree that, by registration of your chosen domain name, such registration does not confer immunity from objection to either the registration or use of your domain name.
9. Revocation. You agree that we may suspend, cancel or transfer your services, including, but not limited to, domain name registration services in order to: (i) correct mistakes made by us, another registrar or the registry in registering your chosen domain name, or (ii) to resolve a dispute under our domain name dispute policy.
10. Survival. In the event the Agreement or this Schedule terminates, Sections 4, 5, 6, 7, 9, 10, 12, 13, and 14 of this Schedule shall survive such expiration or termination.
11. Under Construction Page. You acknowledge and agree that any or all domain names that are (i) registered with Vertical APS, (ii) hosted on a Vertical APS domain name server, and (iii) do not otherwise resolve to an active Web site, may resolve to an “under construction” or similar temporary Web page (“Under Construction Page”), and that Vertical APS may place on any such Under Construction Page promotions and advertisements for, and links to, Vertical APS’s Web site, Vertical APS product and service offerings, third-party Web sites, third-party product and service offerings, and/or Internet search engines. You agree that Vertical APS may change the content and/or appearance of, or disable, any Under Construction Page at any time, in its sole discretion, and without prior notice. If for any reason, you do not want a domain name to resolve to the Under Construction Page described above, you may select an Under Construction Page that contains only Vertical APS branding and a domain name registration search box, as provided on our Web Site.
12. Requests to Change Registrar; Transfers Generally. You agree that Vertical APS may deny any request to transfer a domain name registration that is otherwise capable of transfer to another registrar where you fail to respond appropriately to a transfer confirmation request from Vertical APS. Furthermore, you acknowledge and agree that pursuant to applicable policies adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”) related to the transfer of domain names it is possible for your domain name to be transferred to another registrar even though the transfer has not actually been approved by you, and you agree that we shall not be liable to you for any such unauthorized transfers. You also acknowledge and agree that we cannot control and shall not be liable to you for the actions of third parties, including but not limited to registry operators, in connection with a domain name transfer, or a reversal of or refusal to reverse a domain name transfer, whether or not the transfer was approved by you.
13. Domain Protect. You agree that we may, but are not obligated to, place your domain name registration in a Domain Protect status to prevent unauthorized transfers of your domain name registration, as described on our Web site. You acknowledge and agree that in order to transfer a domain name registration that is in a Domain Protect status, you may first have to access the account manager tool on our Web site and remove the domain name registration from Domain Protect status.
14. Grace Period; IP Address Changes; Renewal and Transfer of Expired Domain Names on Your Behalf. You agree that we may, but are not obligated to, allow you to renew your domain name after its expiration date has passed. You agree that after the expiration date of your domain name registration and before it is deleted or renewed, we may direct your domain name to an IP address designated by us, including, without limitation, to an IP address which hosts a parking, under construction or other temporary page that may include promotions and advertisements for, and links to, Vertical APS’s Web site, Vertical APS product and service offerings, third-party Web sites, third-party product and service offerings, and/or Internet search engines, and you agree that we may place our contact information in the WHOIS output for the expired domain name. Should you not renew your domain name during any applicable grace period, you agree that unless you notify us to the contrary we may, in our sole discretion, renew and transfer the domain name to a third party on your behalf (such a transaction is hereinafter referred to as a “Direct Transfer”), and your failure to so notify us after the domain name expiration date shall constitute your consent to such a Direct Transfer. In the event we are able to identify such a third party (the “Direct Transfer Customer”) and effectuate such a Direct Transfer, we will notify you via email after the transaction is completed (“Direct Transfer Notification”). Additionally, you will be eligible to receive a portion of the funds received by us as a result of a Direct Transfer of your domain name, as follows: (i) if you registered your domain name with Vertical APS directly through our Web site, you will be eligible to receive twenty percent (20%) of the Net Proceeds received by us from our third party vendor as a result of a Direct Transfer; and (ii) if you registered your domain name with Vertical APS through a third party agent (such as your ISP, for example), you will be eligible to receive fifteen percent (15%) of the Net Proceeds received by us from our third party vendor as a result of a Direct Transfer. You acknowledge and agree that the Direct Transfer process may be facilitated through a single Direct Transfer Customer, or through a brief auction involving multiple parties who are interested in your domain name. For purposes of this paragraph, “Net Proceeds” shall mean the total fees paid to us by our third party vendor as a result of a Direct Transfer, less any registry fees, credit card charge-backs, processing and check fees, and other costs or fees associated with the Direct Transfer of the domain name. You agree that we shall have no obligation to pay you, and you shall have no right to receive, any percentage of the Net Proceeds unless, within ninety (90) days after the date of our Direct Transfer Notification, you first provide us with the name, address and related information requested by us (including, but not limited to, a Form W-9, if applicable) in our Direct Transfer Notification. We cannot guarantee, and we make no representation or promise, that any Direct Transfer will occur with respect to your domain name.
15. New Customers through a Backorder Service. If you are registering a domain name through a backorder service and that domain name was registered with, and not yet deleted by, Vertical APS at the time of your purchase, you acknowledge and agree that the term of your registration will be for a period of one year from the original expiration date for the domain name immediately prior to your purchase, as the registration is the result of a Direct Transfer (defined above). If you are registering a domain name through a backorder service and the domain name was not registered with Vertical APS at the time of your purchase but was deleted by the applicable top-level domain registry at the time of your purchase, you acknowledge and agree that the term of your registration will be for a period of one year from the date it is initially registered with Vertical APS by the provider of the backorder service.
SCHEDULE B TO VERTICAL APS STANDARD TERMS AND CONDITIONS
E- MAIL SERVICES
1. Description of Service. Vertical APS is providing you with the capability of sending and receiving electronic mail via the Internet. You must: (a) provide all equipment, including a computer and modem, necessary to establish a connection to the Internet; and (b) provide for your own connection to the Internet and pay any telephone service fees associated with such connection. Vertical APS has set no fixed upper limit on the number of messages you may send or receive through the e-mail service; however, Vertical APS restricts the number of recipients of any e-mail sent by you to five hundred (500) per e-mail and retains the right, at Vertical APS's sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our services to other customers and to protect our computer systems. We, in our sole discretion, will determine whether or not your conduct is consistent with this Agreement and any Vertical APS operating rules or policies and may suspend or terminate your e-mail service if your conduct is found to be inconsistent with this Agreement or such rules or policies. The e-mail service is subject to scheduled (from 12:01am eastern United States time to 2:00 am eastern United States time every Saturday) and unscheduled outages that will impact your ability to use the service. We will use commercially reasonable efforts to restore the service after any unscheduled outages. Moreover, in order to receive the e-mail service we (or our third party provider) must host your domain name record. If you transfer your domain name record to a third party in conjunction with a live web site, or for any other reason, or allow your domain name registration to expire, you will no longer be able to use the e-mail service. We will not refund the fees you paid for our e-mail service if you elect to transfer your domain name record to a third party. You may not exceed the storage [megabytes] applicable to the particular e-mail services purchased by you as specified on our Web site at the time of your purchase (or as subsequently modified by us pursuant to this Agreement). If you exceed the applicable storage limitations, Vertical APS reserves the right, in its sole discretion, to either (A) charge, and you agree to pay, an additional fee as described on our Web site for each Megabyte of usage that exceeds the bandwidth limitations set forth above, or (B) terminate or suspend your email services and this Agreement.
2. Catch-All Mailbox Service. Vertical APS may make available to you the ability to subscribe to our Catch-All Mailbox service. You acknowledge and agree that, in the event you subscribe to the Catch-All Mailbox service, any electronic mail sent to the e-mail box of any user of your Vertical APS e-mail service (e.g., Person@Yourcompany.com) will also be sent to the e-mail box set up for the Catch-All Mailbox service. You further acknowledge and agree that in the event your Vertical APS e-mail and domain name services are terminated, any future registrant of your terminated domain name that subscribes to the Catch-All Mailbox service may receive e-mails intended for receipt by you or a former user of your e-mail service, and you agree that Vertical APS shall have no liability to you or any third party with respect thereto. You are solely responsible for providing any and all necessary notifications regarding termination of your Vertical APS e-mail services, and you agree that Vertical APS shall have no liability to you or any third party with respect thereto.
3. SPAM Protection. Vertical APS's e-mail service includes real-time SPAM Protection provided by Vertical Aps and/or its third party contractors. All e-mail sent to your e-mail address(es) will be scanned by Anti-Spam software to detect SPAM and to assist in preventing SPAM from reaching your e-mail box(es). All e-mail detected as SPAM will be deleted and will not be delivered to your email inbox. All e-mail box(es) automatically include SPAM Protection and this feature can not be disabled or configured by you. You acknowledge and agree that our SPAM Protection feature is not guaranteed to be one hundred percent (100%) effective or error free and may result in e-mail that is not SPAM being falsely identified as SPAM and deleted by our system, or the delivery of SPAM to your e-mail box(es). You acknowledge and agree that Vertical APS shall have no liability to you or any third party with respect to our SPAM Protection feature, your failure to receive any e-mail as a result thereof, or your receipt of SPAM.
4. Virus Protection. Vertical APS's e-mail service includes Virus Protection that scans your email, and attachments thereto, to assist in the prevention of the transmission of viruses to your computer system and/or e-mail program. All e-mail sent to your e-mail address(es) will be scanned for viruses. If a virus is detected, the e-mail message and/or attachment, as applicable, will be cleaned if possible and the header of the e-mail will be tagged to inform you that a virus was detected and that the e-mail message and/or attachment has been cleaned and the virus removed. If a virus is detected, and the virus cannot be removed from the e-mail message and/or attachment, the e-mail message and/or attachment will be deleted and the e-mail will be tagged to inform you that portions of the e-mail have been deleted because a virus was detected. All e-mail box(es) automatically include Virus Protection and this feature cannot be disabled or configured by you. You acknowledge and agree that our Virus Protection feature is not guaranteed to be one hundred percent (100%) effective or error free and may delete e-mail messages and/or attachments that you may desire to view, or allow the transmission of viruses to your computer system and/or e-mail program. You acknowledge and agree that Vertical APS shall have no liability to you or any third party with respect to our Virus Protection feature, your failure to receive any e-mail and/or e-mail attachments as a result thereof, or the transmission of viruses to your computer system and/or e-mail program.
6. Billing for E-mail Service. Billing for annual e-mail services shall be by valid credit card (acceptable to Vertical APS) at the time of purchase. If you elect to subscribe to monthly e-mail services, your monthly payments for the same will be automatically charged to the credit card provided by you (and acceptable to Vertical APS) at the time of your purchase (with such payments being charged in advance on a monthly basis) ("Monthly E-mail Service Fee"), and you hereby agree that Vertical APS is authorized to so charge your credit card. Vertical APS, in its sole discretion, shall determine the prices it will charge for the e-mail services, and the terms and conditions applicable to the same, and Vertical APS may, upon providing thirty (30) days' notice to you, amend such pricing and/or terms and conditions. If you do not agree with any such change(s), you may terminate this Agreement or cancel your e-mail service subscription, as applicable, as provided herein, within such thirty (30) day period; otherwise all such changes shall thereafter be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Monthly E-mail Service fee.
7. Privacy. Vertical APS will not monitor, edit or disclose the contents of your private communications with third parties unless required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the law or comply with legal process served on Vertical APS; (b) protect and defend the rights or property of Vertical APS; or (c) act under exigent circumstances to protect the personal safety of our customers or the public. You acknowledge and agree that Vertical APS neither endorses the contents of any of your communications nor assumes responsibility for such content, including but not limited to any threatening, libelous, obscene, harassing or offensive material contained therein, or any infringement of third party intellectual property rights arising there from or any crime facilitated thereby. You acknowledge and agree that certain technical processing of e-mail messages and their content may be required to: (a) send and receive messages; (b) conform to connecting networks' technical requirements; (c) conform to the limitations of the e-mail service; or (d) conform to other similar requirements.
8. Customer Conduct. You agree to be bound by the applicable provisions of the Vertical APS Acceptable Use Policy, incorporated herein and made part of this Agreement by reference, in connection with your use of the services described in this Schedule. Vertical APS's outsourcing contractors for the e-mail services, shall be intended third party beneficiaries of the e-mail service customer's obligations under this Agreement and thus shall be entitled to enforce those obligations against you as if a party to this Agreement.
SCHEDULE C TO VERTICAL APS STANDARD TERMS AND CONDITIONS
Terms and Conditions of Sale for Equipment, Software & Related Service
These terms and conditions referenced in this Schedule C to the Agreement apply to your purchase of computer systems and/or related products and/or services and support sold in the United States ("Product") by the Vertical APS entity named on the invoice or acknowledgement ("Vertical APS") provided to you. By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Vertical APS immediately and return your purchase pursuant to Vertical APS's Return Policy. (See: http://www.Vertical APS.com for our contact information.) If returned, Product(s) must remain in the boxes in which they were shipped. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH VERTICAL APS, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER VERTICAL APS TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Vertical APS. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about your purchase may be obtained at http://www.Vertical APS.com by contacting your sales representative.
2. Payment Terms; Orders; Quotes; Interest. Payment terms are within Vertical APS's sole discretion, and, unless otherwise agreed to by Vertical APS, payment must be made at the time of purchase. Payment for Product may be made by credit card, wire transfer, or some other prearranged payment method. Vertical APS may invoice parts of an order separately. Your order is subject to cancellation by Vertical APS, at Vertical APS's sole discretion. Unless you and Vertical APS have agreed to a different discount, Vertical APS's standard pricing policy for Vertical APS-branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system. Vertical APS is not responsible for pricing, typographical, or other errors, in any offer by Vertical APS and reserves the right to cancel any orders resulting from such errors.
3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Loss or damage that occurs during shipping by a carrier selected by Vertical APS is Vertical APS's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Vertical APS within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide Vertical APS with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only. Title to software will remain with the applicable licensor(s).
4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO VERTICAL APS-BRANDED HARDWARE PRODUCT CAN BE FOUND AT http://www.Vertical APS.com/policy/legal/warranty.htm OR IN THE DOCUMENTATION VERTICAL APS PROVIDES WITH THE PRODUCT. VERTICAL APS MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-VERTICAL APS BRANDED PRODUCT. SUCH PRODUCT IS PROVIDED BY VERTICAL APS "AS IS". WARRANTY AND SERVICE FOR NON-VERTICAL APS BRANDED PRODUCT, IF ANY, IS PROVIDED BY THE ORIGINAL MANUFACTURER, NOT BY VERTICAL APS. VERTICAL APS MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN VERTICAL APS'S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. WARRANTIES AND SERVICE WILL BE EFFECTIVE, AND VERTICAL APS WILL BE OBLIGATED TO HONOR ANY SUCH WARRANTIES AND SERVICES, ONLY UPON VERTICAL APS'S RECEIPT OF PAYMENT IN FULL FOR THE ITEM TO BE WARRANTED OR SERVICED.
5. Software. All software is provided subject to the license agreement that is part of the software package and you agree that you will be bound by such license agreement.
6. Return Policies; Exchanges Vertical APS's return policy can be found at http://www.Vertical APS.com. You must contact us directly before you attempt to return Product to obtain a Return Material Authorization Number for you to include with your return. You must return Product to us in their original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Vertical APS, Vertical APS is not responsible whatsoever for Product that is lost, damaged, modified or otherwise processed for disposal or resale. At Vertical APS's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
7. Changed or Discontinued Product. Vertical APS's policy is one of ongoing update and revision. Vertical APS may revise and discontinue Product at any time without notice to you and this may affect information saved in your online "cart." Vertical APS will ship Product that have the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. Parts used in repairing or servicing Product may be new, equivalent-to-new, or reconditioned.
8. Service and Support. Service offerings may vary from Product to Product. If you purchase optional services and support from Vertical APS, Vertical APS and/or your third-party service provider will provide such service and support to you in the United States in accordance with the terms and conditions located at http://www.VerticalAPS.com or as mailed to you. You may contact Vertical APS for more information, see http://www.VerticalAPS.com for contact information. Vertical APS and/or the third-party service provider may at their discretion, revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. Vertical APS has no obligation to provide service or support until Vertical APS has received full payment for the Product or service/support contract you purchased. Vertical APS is not obligated to provide service or support you purchase through a third party and not Vertical APS.
9. Limitation of Liability. VERTICAL APS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, VERTICAL APS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, VERTICAL APS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10. Applicable Law; Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export. Vertical APS has separate terms and conditions governing resale of Product by third parties and transactions outside the United States. Terms and conditions for resale are located at: www.Vertical APS.com.
11. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND VERTICAL APS arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Vertical APS's advertising, or any related purchase SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
12. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from.
SCHEDULE D TO STANDARD TERMS AND CONDITIONS
WEB FORWARDING SERVICE
1. Vertical APS is providing you with the capability to forward users or visitors who type in a specific domain name to another domain name designated by you through the Web Forwarding service. You represent and warrant that you have the necessary rights to use the Web Forwarding service to forward, point, alias or resolve your domain name registration(s) to the other domain name designated by you in ordering such services. You agree that we, in responding to a third party complaint or for any other reason, have the right, in our sole discretion, to suspend or terminate your Web Forwarding service without notice and with no obligation to refund fees paid if we determine the Web Forwarding service is forwarding users to a Web site or URL that is unsuitable or being used for any unlawful or harmful purpose, as determined in our sole discretion.
2. You acknowledge and understand that the Web Forwarding service includes a Domain Masking feature that will make your site visitors see the domain name associated with the Web Forwarding service in the window of their browser throughout your entire Web site and on all Web sites linked to from your Web site while the window session remains open. You have the ability to turn the Domain Masking feature on or off at any time through Account Manager. The Domain Masking feature may not work will all Web sites depending on how they are configured and their ability to be viewed within a browser frame.
3. You agree to be bound by the applicable provisions of the Vertical APS Acceptable Use Policy, incorporated herein and made part of this Agreement by reference, in connection with your use of the services described in this Schedule.
SCHEDULE E TO VERTICAL APS STANDARD TERMS AND CONDITIONS
SEARCH ENGINE LISTING SERVICE
We may provide you an opportunity through our SEARCH ENGINE LISTING service to have your website included in the search index of one of our third party vendors (for purposes of this paragraph, the "Index Servicer"). At the time of purchase, the URL submitted by you (the "URL") will be provided to the Index Servicer for submission in its search database. The Index Servicer will then periodically search various content of your website and include such content in the search index. The index may be searched by the Index Servicer's search partners. You may submit corrections or changes to the URL during the first thirty (30) days after your purchase of the SEARCH ENGINE LISTING service, after which time period no further changes to the URL will permitted. You acknowledge and agree that the Index Servicer is responsible for maintaining the index and keeping it current. We bear no responsibility or liability for the operation, maintenance and functioning of the index or for the service described in this paragraph. You further acknowledge that in order for the Index Servicer to include your website in its search index, your website must be technically compatible with the the Index Servicer search tool. At a minimum, in order to be technically compatible: (a) your website address must not contain formatting errors; (b) your website must be operational (i.e., it may not be "under construction" and it may not generate error messages such as "file not found"); (c) your website must contain visible text and be accessible without a password or similar restriction; and (d) your website must permit so-called "spidering" technology. We and/or the Index Servicer, in our sole discretion, may remove a website from the search index for any reason, including, but not limited to, the following: (a) fraudulent or illegal use of the service; (b) the potential infringement of the rights of a third-party; (c) in response to a court order or other judicial or governmental request or action; and/or (d) the posting of content or the offering of products or E-Commerce Services that may be or are illegal (e.g., if either we or the Index Servicer receives a notice of an act of copyright infringement in compliance with the notice requirements of the Digital Millennium Copyright Act of 1998). You expressly agree (a) that we will not be responsible for the operation, maintenance or functioning of the index and the search service or any delays or failures to perform; and (b) that we do not represent or warrant that your website or address will (i) achieve favorable placement, or any placement, within the search index, or (ii) experience increased visits, or any visits, as a result of placement in the search index.
SCHEDULE F TO STANDARD TERMS AND CONDITIONS
1. Definitions. For purposes of this Schedule, the following capitalized terms shall have the meanings ascribed to them below:
(a) "Web Site Template" means any pre-designed, customizable Vertical APS Web site template licensed by Vertical APS to end users.
(b) "Starter Package" means a one-page Web Site Template and one e-mail box.
(c) "Subscription Service" means any of the Vertical APS Web Site Template packages that are available for purchase by end users on a monthly or annual basis, for a monthly or annual fee (respectively), that combine a Web Site Template, the Web site Editing Tool, the Web Hosting Service, and/or such other services as may, from time to time, be included in the package by Vertical APS as of the time of your purchase.
(d) "Web site Editing Tool" means the Vertical APS on-line design and editing tool that allows customers to access their Web Site Templates, add/modify content, upload images and make generic changes to their Web Site Templates.
(e) "Web Hosting Service" means the Web hosting services provided by Vertical APS or a third party through Vertical APS as part of a monthly or annual Web Site Template Subscription Service.
2. Payment. In addition to the payment terms in Section 3 of the Agreement, the following provisions shall also apply solely with respect to the Subscription Service:
(a) Billing for the Subscription Service shall be by valid credit card (acceptable to Vertical APS) at the time of purchase at the fee set forth on our web site. Your monthly and, if you've selected our "auto-renew" feature, annual payments for the Subscription Service shall be automatically charged to the credit card provided by you (and acceptable to Vertical APS) at the time of your purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable ("Subscription Service Fee"), and you hereby agree that Vertical APS is authorized to so charge your credit card. Vertical APS, in its sole discretion, shall determine the prices it will charge for the Subscription Service, and the terms and conditions applicable to the same, and Vertical APS may, upon providing thirty (30) days notice to you by email, amend such pricing and/or terms and conditions. If you do not agree to the change(s), you may terminate this Agreement (or cancel your Subscription Service, as applicable) as provided herein within such thirty (30) day period; otherwise all such changes shall thereafter be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Subscription Service Fee, on the next monthly or annual (as applicable) payment cycle.
3. File Size and Bandwidth Limitations. The following file size and bandwidth limitations apply to all Web Site Templates offered by Vertical APS:
(a) File Size. You can upload an unlimited number of files to your Web Site Template, provided that all files must comply with the following size limitations. All Image, Text and Document files have a 5 Megabyte limit (includes .gif, .jpg, .jpeg, .txt, .doc, .xls, .wri, .ppt, .dxf, .pdf and .psd files). All Media, Flash, and Compressed files have a 15 Megabyte limit (includes .mpg, .mp2, .mp3, .wav, .mid, .mov, .asf, .wma, .wmv, .avi, .mpeg, .rm, .ra, .swf, .zip and .sit files).
(b) Bandwidth. You and your Web Site Template visitors can view and download the following amounts of content on your Web Site Template per month: (i) 1 page Web Site Template and Starter Package Web Site Templates = 250 Megabytes per month; (ii) 5 page Web Site Template = 1Gigabytes per month; and (iii) 10 page Web Site Template = 2 Gigabytes per month. Vertical APS reserves the right, in its sole discretion, to either (A) charge, and you agree to pay, an additional fee as determined by Vertical APS in its sole discretion, which fee shall not exceed US $0.50 per Megabyte, for each Megabyte of usage that exceeds the bandwidth limitations set forth above, or (B) terminate or suspend your Web Site Template and this Agreement if you exceed the bandwidth limitations set forth above.
4. Conduct. You agree to be bound by the applicable provisions of the Vertical APS Acceptable Use Policy, incorporated herein and made part of this Agreement by reference, in connection with your use of the services described in this Schedule.
5. Cancellation. You may cancel your Subscription Service at any time. To cancel your Subscription Service you must submit your written notice of cancellation to Vertical APS (as provided herein) and include the following information: (i) Your Vertical APS customer identification number and username; (ii) the registered Domain Name associated with your Web Site Template; and (iii) your reason for requesting cancellation. Unless otherwise agreed to in writing (in either paper or electronic form), your Subscription Service will be canceled as of the expiration of the monthly billing cycle in which your notice was received.
6. Term and Termination.
(a) Term. Your Subscription Service shall be either (i) on a month-to-month basis for successive monthly periods, (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or (iii) if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Subscription Service.
(b) Notice of Service Cancellation by You. Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with Vertical APS, will be terminated as of the cancellation of your Subscription Service.
(c) Survival. In the event of expiration or termination of this Schedule or the Agreement for any reason, Sections 1 and 6 of this Schedule shall survive.
SCHEDULE G TO STANDARD TERMS AND CONDITIONS
ADDITIONAL TERMS APPLICABLE TO STATS AND GUESTBOOK SERVICES -- PURCHASED DIRECTLY FROM VERTICAL APS OR PROVIDED FREE WITH A WEB SITE
In addition to the terms and conditions set forth on Schedule O, the following terms and conditions shall apply to all Stats and Guestbook services purchased directly from Vertical APS or included free with a Web site purchased directly from Vertical APS.
1. Any services referenced herein that are purchased in connection with a Subscription Service shall be included in the definition of Subscription Service for purposes of the terms and conditions set forth in Schedule O.
3. Page View Limits. The Stats services are limited to One Hundred Thousand (100,000) page views per account per month. All Web site accounts exceeding such limit are subject to cancellation without notice.
4. Cancellation of Your Web site. Any termination of your Web site Subscription Service will result in the termination of your Stats and Guestbook services, if applicable, and this Schedule, at the expiration of the monthly billing cycle in which your cancellation notice was received and processed by Vertical APS.
SCHEDULE H TO STANDARD TERMS AND CONDITIONS
In addition to the terms and conditions in the General Provisions and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Hosting Services (as defined below).
1. Description of Service
Vertical APS may make available for purchase, from time to time, a variety of hosting packages, stand-alone hosting services and optional add-on services, as published on the Vertical APS website (collectively, "Hosting Services"). Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, Vertical APS agrees to provide to you the Hosting Services you purchase during the sign-up process. Vertical APS reserves the right to amend its Hosting Services offerings and to add, delete, suspend or modify the terms and conditions of the Hosting Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Fees and Payment Terms
2.1 Billing for Hosting Services shall be by valid credit card (acceptable to Vertical APS) at the time of purchase at the fee set forth on our web site. Your monthly and, if you've selected our "auto-renew" feature, annual payments for Hosting Services shall be automatically charged to the credit card provided by you (and acceptable to Vertical APS) at the time of your purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable ("Hosting Services Fee"), and you hereby agree that Vertical APS is authorized to so charge your credit card. Vertical APS, in its sole discretion, shall determine the prices it will charge for the Hosting Services, and the terms and conditions applicable to the same, and Vertical APS may, upon providing thirty (30) days' prior written notice to you by email, amend such pricing and/or terms and conditions. If you do not agree to any such pricing and/or terms and conditions change(s), you may terminate this Agreement (or cancel your Hosting Services, as applicable) as provided herein within such thirty (30) day period; otherwise all such changes shall thereafter be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
2.2 In addition to recurring service fees, Vertical APS may charge set up fees and other one-time fees for any optional services as set forth on our Web site and/or described in this Schedule (collectively "One-time Fees"). Billing for One-time Fees shall be by valid credit card (acceptable to Vertical APS) at the time of purchase at the price set forth on our web site. Your One-time Fees shall be automatically charged to the credit card provided by you (and acceptable to Vertical APS) at the time of your purchase, and you hereby agree that Vertical APS is authorized to so charge your credit card. Vertical APS, in its sole discretion, shall determine the prices it will charge for all One-time Fees.
2.3 Vertical APS will charge you a processing fee of $9.95 (U.S. Dollars) if you terminate or cancel an annual Hosting Services package prior to the completion of any limited money-back guarantee period for that package ("Processing Fee"). You authorize Vertical APS, in its sole discretion, to charge the credit card provided by you at the time of your purchase or forward an invoice to you immediately upon any such termination or cancellation of an annual Hosting Services package for the amount of the Processing Fee.
3. Term and Termination
3.1 Term. Your Hosting Services shall be either (i) on a month-to-month basis for successive monthly periods, (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or (iii) if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Hosting Services.
3.2 Cancellation. Subject to your obligation to pay any applicable Processing Fees, you may cancel your Hosting Services at any time. To cancel your Hosting Services you must submit your written notice of cancellation to Vertical APS (as provided herein) and include the following information: (i) Your Vertical APS customer identification number and username; (ii) the registered domain name, if any, associated with your Hosting Services; and (iii) your reason for requesting cancellation. Unless otherwise agreed to in writing (in either paper or electronic form), your Hosting Services will be canceled as of the expiration of the monthly billing cycle in which your notice was received. Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with Vertical APS, will be terminated as of the cancellation of your Hosting Services.
3.3 If you breach any term of this Agreement including, but not limited to, this terms of this Schedule or the Acceptable Use Policy, Vertical APS may, in its sole and exclusive discretion, suspend or terminate your Hosting Services immediately and without notice to you. Hosting Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
3.4 Upon any termination of this Schedule or the Agreement for any reason, Sections 2, 3.4, 4, 5 and 6 shall survive termination.
4. Additional Warranty Disclaimers and Limitations of Liability
4.1 ADDITIONAL DISCLAIMER. VERTICAL APS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY VERTICAL APS.
4.2 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Vertical APS has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet.
4.3 You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Hosting Services or obtain from the Internet.
4.4 You agree that if Vertical APS takes any corrective action under this Agreement in response to your or your end users' actions or failures to act, that corrective action may adversely affect you or your end users and you agree that Vertical APS shall have no liability to you or your end users due to any corrective action taken by Vertical APS.
4.5 You agree that Vertical APS has no obligation to back-up any data related to your website unless Vertical APS expressly agrees otherwise in writing (or has expressly stated so on our Web site). You agree that you will regularly back-up your data whether or not Vertical APS agrees to or actually does back-up any data.
5. Restrictions on Use
5.1 Vertical APS does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Hosting Services (the "Content"). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users' content and all activities on your website. Vertical APS, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of your Content and suspension and/or termination of your Hosting Services, in the event of notice of any possible violation of this Agreement or the AUP by you or your end users. You agree that Vertical APS will have no liability to you or any of your end users due to any corrective action that Vertical APS may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
5.2 You warrant that your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.
5.3 Your use of networks or computing resources provided to Vertical APS by third party providers and made available to you as part of the Hosting Services is subject to the respective permission and usage policies of such third parties.
5.4 You expressly (i) grant to Vertical APS a license to cache the entirety of your Content and your web site, including content supplied by third parties, hosted by Vertical APS under this Agreement, and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
5.5 You agree that you will not exceed the bandwidth or storage space limits applicable to the Hosting Services purchased, as set forth on our Web site. You agree that if you do exceed either of such limits, Vertical APS, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and/or suspension and/or termination of your Hosting Services. You agree that Vertical APS will have no liability to you or any of your end users due to any corrective action that Vertical APS may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
6. Other Terms and Conditions
6.1 The Hosting Services we provide under this Agreement may incorporate other products or services that we provide, or products or services provided by third parties with whom we have a business relationship ("Additional Services"). Your use of these Additional Services may be subject to a separate application and/or approval process and your reaching separate agreements with us or with third parties. (For example, if you desire to accept credit card payments through a website you establish via the Hosting Services, your relationship with the third-party merchant account provider may be subject to an application and approval process and your reaching a separate agreement with such provider.) Some of these separate agreements may require you to pay fees in addition to the fees that you pay us for the Hosting Services. We will strive to let you know when your receipt of Additional Services will require you to enter into a separate agreement, whether with us or with a third-party, and whether such separate agreement will require you to pay additional fees. Additionally, depending on the services you elect to receive, you may be responsible for establishing and maintaining a commercial banking relationship with a financial institution. The terms of any such relationship shall be between you and the financial institution and will not necessarily reflect or incorporate terms of any agreements we may have with the institution. Further, you agree that our third party vendors providing any services as part of the Hosting Services, and their successors, are intended third-party beneficiaries under this Agreement and will be entitled to enforce your obligations under this Agreement. Finally, you acknowledge and agree that other Schedules in this Agreement may apply to the various services included in your Hosting Services package (for example, Schedules related to domain name registration, email, Private Registration, etc.), and that you have read and you agree to be bound by the additional terms and conditions in those Schedules.