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Managed Server Agreement
CLIENT INFORMATION:
Name: _____________________________________
Street Address: __________________________________
City: _________________________ State/Province:_________
Zip Code: __________
Country:____________
Contact Name: _________________________ Title:_________________________
Telephone No: _________________________ E-mail:________________________
Type of Client:
Individual/Sole: ____ Proprietorship:____ Corporation:____
Limited Liability Company: ____ Partnership:____
Other: _________________________________________
AGREEMENT:
Client identified above agrees to engage CybrHost Corporation ("CybrHost") to furnish specific services as identified in Dedicated Server Order Form(s) ("Service Order") executed between Client and CybrHost. This Agreement includes the standard terms and conditions attached hereto and any Service Order(s) and Service Order Change Form(s) executed pursuant to this Agreement. This Agreement constitutes the entire agreement between Client and CybrHost and replaces all prior oral or written communications between the parties.
SIGNATURES:
By signing this Agreement, the undersigned certify that they have read and understand, and agree to be legally bound by, the terms and conditions of this Agreement, including the terms and conditions contained in any Service Order or Service Order Change Form.
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MANAGED SERVER STANDARD TERMS AND CONDITIONS
1. SERVICES PROVIDED BY CYBRHOST CybrHost provides Internet connectivity services ("Bandwidth"), certain equipment used in Internet connectivity services ("Hardware"), space in its data center to store and operate such Hardware ("Space") and licensing of the associated operating systems, web server software and other proprietary software of CybrHost ("Software"), in addition to other services set forth in the dedicated server package created by Client (Bandwidth, Hardware, Space, Software and all other services provided by CybrHost are collectively referred to herein as "Services"). CybrHost desires to provide Services to Client, and Client desires to receive and compensate CybrHost for those Services, as more specifically set forth in Client's Dedicated Server Order Form incorporated herein by this reference ("Service Order").
2. SERVICES AND SERVICE ORDERS
2.1 Service Order(s). Client shall use the then current version of the Service Order form as designated by CybrHost. The Service Order shall be subject to the terms and conditions of this Agreement. In the event any provisions contained in a Service Order conflict with any terms, conditions or clauses contained in this Agreement, the provisions of this Agreement shall control.
2.2 Service Order Change Form. CybrHost and Client may agree to execute one or more dedicated server service order change forms ("Service Order Change Forms") at any time and from time to time after the date of this Agreement. Each such Service Order Change Form shall be incorporated into this Agreement and shall become a part hereof and any reference herein to Service Orders shall hereby include any Service Order Change Forms. In the event of any discrepancies between any Service Order Change Forms, the one with the most recent date shall control. Nothing in this Section or any other provision of this Agreement shall obligate CybrHost to agree to any Service Order Change Form. CybrHost shall have the absolute right to refuse any proposal to change the terms of this Agreement as they exist now or at any time in the future.
2.3 Client System Administrator. System administration is included in the Services provided by CybrHost to Client under this Agreement. CybrHost shall be responsible for all management of the server, including but not limited to security updates, patches, system configuration changes, and general maintenance of the server. CybrHost will provide client with the server and the operating system indicated on the Service Order. Due to continual changes in operating systems, CybrHost cannot guarantee that the most recent release of the operating system will be provided.
2.4 IP Addresses. CybrHost may designate for Client's use on a temporary basis the number of Internet Protocol Addresses ("IP Addresses") specified on the Service Order from the address space assigned to CybrHost. Client acknowledges that the IP Addresses are the sole property of CybrHost, and are temporarily designated for Client's use as part of the Services, and are not transportable. CybrHost reserves the right to change the IP Address designations at any time. CybrHost shall use reasonable efforts to minimize inconvenience to Client resulting from such changes, and shall give Client reasonable notice of changes. Client agrees that it will have no right to use IP Addresses assigned to CybrHost upon termination of this Agreement, and that any change in IP Addresses Client may need to make after termination of this Agreement shall be the sole responsibility of Client.
2.5 Bandwidth. The Service Order sets forth the monthly amount of Bandwidth to be provided by CybrHost to Client under this Agreement. Client is solely responsible for monitoring it's Bandwidth consumption through use of the warning utility and/or automatic shutdown utility provided by CybrHost. If Client's Bandwidth usage exceeds the amount set forth on the Service Order, Client hereby authorizes CybrHost to charge the credit card number provided on the Service Order for an additional block of Bandwidth equivalent in size to that originally purchased. The rates for additional Bandwidth blocks shall be as published on CybrHost's website and posted in the Server Administration Utility. In the event that a credit card charge for excess Bandwidth fails or is denied for any reason, CybrHost may suspend any or all Services to Client. If Client has not provided a credit card number for payment of the Services provided hereunder, Client must pay any excess Bandwidth fees in advance to avoid a suspension of all or part of the Services. Any suspension of Services does not release Client from its payment obligations for the Initial Term or any applicable Renewal Term.
3. TERM AND RENEWAL This Agreement will begin on the date it is accepted by CybrHost and shall continue for a period of time as set forth in the Service Order ("Initial Term"), unless earlier terminated according to the provisions of Section 9 below. This Agreement will continue automatically for additional terms equal to the Initial Term (each, a "Renewal Term") unless either party provides written notice at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable, that it has elected not to renew this Agreement. For security reasons and the general protection of all clients, CybrHost requires all notices not to renew the Agreement be delivered by faxing a cancellation request to (559) 625-9725, containing the account name, password, reason for cancellation and signature of Client.
4. LIMITED WARRANTIES
4.1 30-Day Money Back Guarantee. CybrHost hereby extends an unconditional money back guarantee to Client during the first thirty (30) days of the Initial Term ("30-Day Guarantee"). This 30-Day Guarantee shall begin on the date that the server release notification is e-mailed or faxed to the Client and expire thirty calendar days thereafter. In order to avail itself of the 30-Day Guarantee, Client must notify CybrHost by faxing a request, on Client's letterhead, with an authorized signature to (559) 625-9725. Upon cancellation, all Services shall be terminated and any fees paid, excluding Set-Up fees and fees representing one month of Services, shall promptly be credited to the Client's credit card or returned in the form of a check to Client at the Address provided on the Service Order.
4.2 99% Uptime Guarantee. Subject to the limitations contained herein, CybrHost warrants that: (i) the average switch port availability shall be no less than 99% per month, and (ii) Client's dedicated Hardware shall not be unpingable due to Hardware failure ("99% Uptime Guarantee"). The month begins on the first day of each month and continues until the last day of that month. In the event of any loss or interruption of Services resulting in less than 99% uptime and which is due to (i) causes other than scheduled maintenance and required repairs, (ii) causes beyond the control of CybrHost, or (iii) causes which are not reasonably foreseeable by CybrHost, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, Client shall receive, and CybrHost's sole and exclusive liability for any loss or interruption of Services shall be, a credit equal to one month's Services at Client's present fees. Client shall receive not less than 24 hours advance notice to the e-mail address on file for Client's account of the times the network will be unavailable because of scheduled maintenance.
4.3 Price Freeze Guarantee. Provided Client is at no time in breach of this Agreement, CybrHost hereby agrees not to raise the fees set forth in a Service Order ("Price Freeze Guarantee").
5. FEES AND PAYMENT
5.1 Fees. Client shall pay all fees according to the prices and terms listed in this Agreement and the Service Order. The prices listed in the Service Order will remain in effect during the Initial Term and will continue thereafter. Except as provided in the Prize Freeze Guarantee, CybrHost may change the fees it charges Client for Services upon sixty (60) days prior notice to the beginning of any Renewal Term.
5.2 Payments and Late Payment Charge. Payment for all Set-Up Fees (as set forth in the Service Order) shall be due at the time the Service Order is accepted by CybrHost. Fees for Services shall be in the amount and frequency set forth in the Service Order (to begin on the date that the server release notification is e-mailed or faxed to the Client) ("Payment Date"). This Agreement is for the entire Initial Term or applicable Renewal Term and Client is obligated to pay the fees for Services voluntarily selected by Client. All such fees shall be received at CybrHost by 2:00 p.m. on the Payment Date. Client shall pay a late charge of 2% per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that payments are in arrears to CybrHost. All fees that have not been timely paid may be sent by CybrHost to a collection agency. Client agrees to be responsible for paying all costs of collection, including, but not limited to, reasonable attorney's fees and, where lawful, collection agency fees. All accounting issues should be addressed Billing@CybrHost.com.
5.3 Checks or Money Order. Client may pay fees by check or money order in U.S. dollars only. CybrHost will not accept international checks in foreign currency. In the event a check is returned as unpayable, Client will be assessed a $25.00 returned check fee. If Client fails to pay all fees by the Payment Date, Client will be sent a suspension of Services e-mail which will grant Client fourteen (14) days to make payment.
5.4 Credit Card. Client may pay fees by MasterCard, Visa, American Express, and Discover ("Credit Cards"). Credit Cards shall be charged seven (7) days prior to the Payment Date to the Credit Card number given at the time Client submits the Service Order. Payment by Credit Card includes the authorization to charge all future recurring fees and charges to the Credit Card on file with CybrHost. If Client's Credit Card is denied, for any reason, Client will be sent a notice by e-mail. If payment is not received by the Payment Date, CybrHost may make one final attempt to charge Client's Credit Card on or around the Payment Date. If payment is not secured by the Payment Date, Client will be sent a Suspension of Services e-mail which will grant Client fourteen (14) days to make payment. In the event Client initiates a charge back, CybrHost may immediately suspend all Services to Client until such time as full payment is received in addition to a $25.00 charge back fee and $25.00 reactivation fee.
5.5 Suspension of Services. Failure of Client to fully pay any fees when due may be deemed a material breach of this Agreement, justifying suspension of the performance of Services to Client at CybrHost's sole option. Any such suspension of Services does not relieve Client from the obligation to pay all amounts due CybrHost under this Agreement for the remainder of the Initial Term or the then applicable Renewal Term. In the event of a suspension of service, Client shall pay CybrHost a $50.00 suspension of service fee, and if reactivation is requested, a $150.00 reinstatement fee in addition to full payment of the outstanding balance due. Reactivation of services will only be performed during CybrHost's regular business hours (Monday through Friday, 9:00 a.m. to 6:00 p.m. Pacific Time, excluding holidays).
5.6 Pricing Disputes. Client must notify CybrHost in writing of any disputed charges within 30 days of the date of the billing for such charges. If Client does not notify CybrHost within that time period, Client has waived any right to dispute such amounts, either directly or indirectly or as a set-off, recoupment or defense in any action or efforts to collect amounts due to CybrHost.
5.7 Taxes. Fees are exclusive of any and all sales, use, value added, excise, transfer, privilege, duty and any other taxes or duties, whether international, national, state or local, however designated or assessed with respect to the Services provided under this Agreement; excluding, income taxes on profits which may be levied against CybrHost.
6. SOFTWARE LICENSE AND RIGHTS
6.1 Software License. During the Initial Term and any applicable Renewal Term, CybrHost grants Client a nontransferable, nonexclusive limited license to use the Software, in object code form only, solely for purposes of using the Services on the Hardware. To the extent such Software belongs to a third party, CybrHost only grants such rights as it is able to under an agreement with the applicable third party. CLIENT MAY NOT USE WEB PAGES OR PARTS OF WEB PAGES GENERATED BY MEANS OF THE SOFTWARE ON ANY OTHER SERVER.
6.2 Software License Restrictions. Client agrees that it will not, directly or indirectly (and it will not allow others to):
6.2.1 Copy the Software, except as is necessary to install on Hardware and for internal, archival purposes. In the event Client makes any copies of the Software, Client shall reproduce all proprietary notices on such copies;
6.2.2 Reverse engineer, decompile, dissemble, modify or otherwise attempt to derive source code from the Software;
6.2.3 Sell, lease, license, transfer, give possession of, or sublicense the Software or the documentation to others;
6.2.4 Write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information (as defined in Section 10).
6.3 Proprietary Rights. Client shall not have any right, title, or interest in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited license provided in Section 6.1.
6.4 Proprietary Rights of Client. As between Client and CybrHost, Content (defined below) shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Client hereby grants to CybrHost a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.
7. CLIENT OBLIGATIONS
7.1 Content and Conduct. Client is solely responsible for the content of any postings, data, or transmissions using the Services (the "Content"), or any other use of the Services by Client or by any person or entity Client permits to access the Services (a "User"). Client agrees to comply with all laws, rules, regulations, and CybrHost's Acceptable Use Policy ("AUP") found at http://cybrhost.com/Index.mv?parm_func=usagepolicy. The AUP is incorporated herein by this reference and may be updated from time to time by CybrHost in its sole discretion. Client acknowledges that it has read and understands the current version of the AUP and that Client has an obligation to periodically review the AUP from time to time. PLEASE SEE SECTION 9.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION PROCEDURES FOR VIOLATION OF THIS SECTION.
7.2 Passwords. Client is responsible for the security of passwords at all times and is encouraged by CybrHost to change passwords regularly. CybrHost will create two users on each dedicated server to allow access to the server for Client's maintenance purposes only. One of the users will be root-level. Client agrees not to remove these users nor to change the passwords of them. In the event that Client changes passwords or removes CybrHost's user names, Client waives all rights to maintenance and support services to be provided by CybrHost under a Support Plan. Client shall not be entitled to a reimbursement for any fees paid for a Support Plan. CybrHost may charge an additional fee of $250 for the recreation of its user names and passwords which is not included in any other managed services fee. Client may sign a waiver to decline the use of such user names and passwords and assume all risks, losses, and liability that may arise by electing to receive Services without remote access passwords.
8. MAINTENANCE AND SUPPORT
8.1 Maintenance and Support Services. CybrHost shall provide Client with those maintenance and/or support services pursuant to the Support Plan set forth in the Service Order.
8.2 Exclusions. Under no circumstances shall CybrHost be obligated to provide any maintenance and support services arising out of (a) tampering, modifications, alterations, or additions to the Hardware or Software undertaken by persons other than CybrHost or its authorized representatives; or (b) programs, software or hardware supplied by Client.
8.3 Client's Responsibilities. Client shall document and promptly report all errors or malfunctions of the Hardware or Software to CybrHost. Client shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from CybrHost. Client shall maintain a current archive copy of all Software and data. Client shall properly train its personnel in the use of the Hardware and Software.
9. TERMINATION OF AGREEMENT
9.1 Termination upon Breach or Insolvency. This Agreement may be terminated by either party upon written notice, (i) if the other party breaches any obligation hereunder and the breaching party fails to cure such breach within thirty (30) days after such notice, or (ii) if the other party is the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Notwithstanding the foregoing, this Agreement may be terminated by CybrHost at any time upon notice to Client if Client fails to make any payment within fifteen (15) days after such payment was due.
9.2 Termination for Client's Breach of Section 7.1 Notwithstanding Section 9.1 above, CybrHost may immediately terminate this Agreement if it is determined, in CybrHost's sole discretion, that Client has breached Section 7.1 of the Agreement. Any termination under this section shall take effect immediately and Client expressly agrees that it: (i) shall not have any opportunity to cure, and (ii) shall not be entitled to a refund of any fees paid to CybrHost.
9.3 Rights and Remedies upon Termination. In the event either party terminates the Agreement pursuant to Sections 9.1 or 9.2, CybrHost shall be entitled to immediately receive payment for all Services incurred through the date of termination. In addition, it is agreed to that, if Client is the breaching party, then CybrHost will suffer damages that would be difficult to ascertain. Therefore, Client agrees to pay CybrHost all amounts due hereunder for the remainder of the Initial Term or then applicable Renewal Term as liquidated damages and not as a penalty. Such liquidated damages shall be in addition to all other rights and remedies available to CybrHost in law and in equity which may be granted by a court of competent jurisdiction.
10. CONFIDENTIAL INFORMATION Confidential Information shall mean all information identified by a party ("Disclosing Party") to the other party ("Receiving Party"), which is labeled as confidential ("Confidential Information"). Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of Disclosing Party for its own benefit or for the benefit of others. Receiving Party shall not disclose Confidential Information to any third party without written consent of Disclosing Party (except to consultants who are bound by a written agreement with Receiving Party to maintain confidentiality). Confidential Information shall exclude information (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of an obligation of confidentiality; (iii) independently developed by Receiving Party without access to Confidential Information; (iv) known to Receiving Party at the time of disclosure as evidenced by the written records of Receiving Party at the time of disclosure; or (v) produced in compliance with a court order. Receiving Party shall give reasonable notice to Disclosing Party that Confidential Information is being sought by a third person, so as to afford the opportunity to limit or prevent such disclosure. Receiving Party agrees to cease using all Confidential Information, and to promptly return such Confidential Information to Disclosing Party upon request. Notwithstanding the foregoing, Client consents to CybrHost's disclosure of account information to credit reporting agencies, credit bureaus, private credit reporting associations, or to other providers of communications services.
11. LIMITATION OF LIABILITY IN NO EVENT SHALL CYBRHOST BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES, EVEN IF CYBRHOST HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. CYBRHOST'S LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY CybrHost UNDER THIS AGREEMENT IN THE LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT CYBRHOST HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL CYBRHOST BE LIABLE FOR FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL BODY, WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNAVAILABILITY OF OR DELAY IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED FOR PROVISION OF THE SERVICES.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4 OF THIS AGREEMENT, ALL CLIENT SERVICES ARE PROVIDED ON AN "AS IS" BASIS. CYBRHOST DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CYBRHOST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
13. GENERAL PROVISIONS
13.1 Status; Due Authorization and Validity of Agreement. Each party hereby represents and warrants to the other party that:
13.1.1 If an entity, it is duly organized, validly existing and in good standing under the laws of its state and/or country of domicile;
13.1.2 It has the power and authority to execute, deliver and perform under this Agreement; and 13.1.3 This Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms.
13.2 Indemnification. Client will indemnify, defend and hold CybrHost, and its officers, directors, employees, agents and affiliates (each, an "Indemnified Party") harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneysą fees (collectively, "Losses") resulting from or arising out of any claim, suit, action, arbitration or proceeding (each, an "Action") brought by a third party against Indemnified Party relating to: (i) a breach or alleged breach by Client of any of its representations, warranties, covenants or obligations hereunder, (ii) infringement or misappropriation of any intellectual property rights, including but not limited to copyright, trade secret and trademark rights, (iii) personal injury caused by any negligence or willful misconduct of Client, or (iv) use of the Services, including use of the Services without the consent of Client.
13.3 Privacy Policy. In an effort to address Client's privacy concerns, CybrHost has instituted a privacy policy ("Privacy Policy") which may be found at http://www.CybrHost/policies/privacy/. In addition to the terms set forth in this Agreement, the Privacy Policy is incorporated herein by this reference. By executing this Agreement, Client agrees to be bound by the terms of such Privacy Policy. CybrHost reserves the right to change the Privacy Policy at any time.
13.4 Independent Contractor. CybrHost and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between CybrHost and Client. Neither CybrHost nor Client will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
13.5 Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Client shall not solicit or hire the services of any employee or subcontractor of CybrHost without the prior written consent of CybrHost.
13.6 Assignment. Client may not assign or transfer its rights or obligations under or interest in this Agreement without first obtaining the prior written consent of CybrHost. CybrHost may, in its sole discretion, assign its obligations under this Agreement in connection with any merger, sale of all or substantially all of the assets of CybrHost, or sale of a majority of the outstanding shares of voting stock of CybrHost.
13.7 No Lease. This Agreement is a service agreement and is not intended to and will not constitute a lease for any real or personal property. Client acknowledges and agrees that (i) it has been granted only a license to use the Services and equipment provided by CybrHost in accordance with this Agreement, (ii) Client has not been granted any real property interest in any equipment, and (iii) Client has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations or ordinances.
13.8 Attorneys' Fees. In the event of any litigation or arbitration between the parties hereto arising from or related to a party's nonperformance or breach of this Agreement, the prevailing party in any such action shall be entitled to reimbursement of all costs and expenses incurred in connection with such litigation or arbitration, including without limitation, reasonable attorney's fees.
13.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. The parties agree that this Agreement, the Service Order, and Service Order Change Forms, may be delivered by any party by electronic or facsimile signature.
13.10 Alteration. No alteration, modification, or change of this Agreement shall be valid unless made in writing and executed by the parties hereto.
13.11 Publicity. CybrHost may refer to the name of Client, Client's product(s), and/or services, or the business in which the product(s) and/or services are used, in its client directories, on it's web site, in a client profile or in a press release.
13.12 Governing Law; Venue. This Agreement shall be governed by and shall be construed, interpreted, and enforced in accordance with the laws of the State of Ohio, without reference to principles of conflicts of law. The parties agree that the sole and exclusive venue for any and all disputes arising hereunder shall be in any trial court located in Cuyahoga County, Ohio. The parties hereby irrevocably consent to the jurisdiction of the appropriate court in Cuyahoga County, Ohio.
13.13 Severability. Each provision of this Agreement shall be treated as a separate and independent clause, and the unenforceability of any one clause in no way impair the enforceability of any of the other clauses herein.
13.14 No Third-Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
13.15 Entire Agreement. This Agreement, along with the AUP, Privacy Policy and Service Order, shall be the entire agreement among the parties with respect to the transactions contemplated among them and, except as otherwise provided, supersede all previous negotiations, commitments, and writings.
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