Acceptable Use Policy
From time to time Cannon Host may impose reasonable rules and regulations regarding the use of its services. Such rules and regulations are called Acceptable Use Policies (AUPs). The AUPs are not exhaustive and Cannon Host reserves the right to modify the AUPs at any time, effective upon either the posting of the modified AUPs to http://www.cannonhost.com/tos.php or notification of the modified AUPs. By registering for and using the services, and thereby accepting the terms and conditions of the Master Services Agreement or its equivalent, you agree to abide by the AUPs as modified from time to time. Any violation of the AUPs may result in the suspension or termination of your account or such other action as Cannon Host deems appropriate. An unlisted activity may also be a violation of the AUPs if it is illegal, irresponsible, or disruptive use of the Internet. No credits will be issued for any interruption in service resulting from policy violations.
VIOLATION OF ANY AUP IS STRICTLY PROHIBITED AND MAY RESULT IN THE IMMEDIATE TERMINATION OR SUSPENSION OF THE SERVICES YOU RECEIVE FROM CANNON HOST. YOU SHALL REMAIN SOLELY LIABLE AND RESPONSIBLE FOR YOUR USE OF THE SERVICES AND ANY AND ALL CONTENT THAT YOU DISPLAY, UPLOAD, DOWNLOAD OR TRANSMIT THROUGH THE USE OF THE SERVICES. "CONTENT" INCLUDES, WITHOUT LIMITATION, YOUR E-MAIL, WEB PAGES, PERSONAL HOME PAGES, AND DOMAIN NAMES. IT IS CANNON HOST'S POLICY TO TERMINATE REPEAT INFRINGERS. CANNON HOST RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE AT ANY TIME.
Customer Security Responsibilities
The customer is solely responsible for any breaches of security affecting servers under customer control. If a customer's server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's server and any other requirement affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $250 USD per hour.
System And Network Security
Violations of system or network security are prohibited, and may result in criminal and civil liability. Cannon Host may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
Interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Cannon Host. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required. Cannon Host is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Cannon Host urges its customers to assume that all of their online communications are insecure. Cannon Host cannot take responsibility for the security of information transmitted over Cannon Host's facilities.
The customer is responsible for protecting customer's password and for any authorized or unauthorized use made of customer's password. The customer will not use or permit anyone to use Cannon Host's service to guess passwords or to access other systems or networks without authorization. Cannon Host will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity.
The customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). The customer will comply with the rules appropriate to any network to which Cannon Host may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against Cannon Host by offended users. Cannon Host reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.
Copyright Infringement - Software Piracy Policy
The Cannon Host network may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.
Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be fined up to $250,000 and/or receive up to 5 years in jail.
Cannon Host will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
Customers have a responsibility to use the Cannon Host network responsibly. This includes respecting the other customers of Cannon Host. Cannon Host reserves the right to suspend and or cancel service with any Customer who uses the Cannon Host network in such a way that adversely effects other Cannon Host customers. This includes but is not limited to:
Attacking or attempting to gain unauthorized access to servers and services that belong to Cannon Host or its customers (i.e. computer hacking), and/or
Participating in behavior which result in reprisals that adversely effect the Cannon Host network or other customers' access to the Cannon Host network.
Cannon Host will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a Cannon Host customer, whether or not the attacked account or computer belongs to Cannon Host, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of Cannon Host is strictly prohibited.
Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/programs/ipcis/ipcis.htm. Cannon Host will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fradulent content.
Using any Cannon Host service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.
Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Cannon Host services or products is prohibited. Using the Cannon Host network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.
Servers hosted within Cannon Host network are open to the public. You are solely responsible for your usage of the Cannon Host network and servers and any statement you make on servers hosted within the Cannon Host network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
Child Pornography on the Internet
Cannon Host will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the Cannon Host network, and will be liable for illegal material posted by their clients.
According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT
Commercial Advertisements with E-mail
Cannon Host takes a zero tolerance approach to the sending of Unsolicited Commercial E-mail (UCE) or SPAM over our network. Very simply, this means that customers of Cannon Host may not use or permit others to use our network to transact in UCE. Customers of Cannon Host may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
Sending a message, especially an advertisement, to more than five recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. This includes both commercial advertisements and informational messages sent to recipients via electronic mail (email) as well as off-topic messages posted in Usenet discussion groups where the recipient has not requested or invited the message. E-mail is a person-to-person medium, not a broadcast medium.
Customers of Cannon Host are strictly prohibited from using or permitting others to use UCE or SPAM over our network. As our Customers are ultimately responsible for the actions of their clients over the Cannon Host network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
Violation of Cannon Host's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Cannon Host will initiate an immediate investigation (within 48 hours of notification). During the investigation, Cannon Host may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Cannon Host may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Cannon Host reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Cannon Host will notify law enforcement officials if the violation is believed to be a criminal offense.
IP Address Overlap
Cannon Host administers the network on which customer servers reside. The customer cannot use IP addresses which were not assigned to them by Cannon Host staff. Any server found using IPs which were not officially assigned will be suspended from network access until such time as the IP addresses overlap can be corrected.
Cannon Host allows the use of IRC inside the Cannon Host network as long as the use of IRC on a Cannon Host server does not violate any of the other terms of this AUP. As a policy, Cannon Host will not provide vanity IRC reverse DNS records. To enforce this policy Cannon Host does not turn the reverse address of IPs over to the customer. Authority over this information remains with Cannon Host.
The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.
Cannon Host reserves the right to suspend network access to any customer if, in the judgment of the Cannon Host network administrators, the customer's server is the source or target of the violation of any of the other terms of the AUPs or for any other reason which Cannon Host chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. Customers are not billed for suspended servers during the suspension period.
Cannon Host reserves the right to cancel service at any time. If inappropriate activity is detected, all accounts of the customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. All fees paid in advance of cancellation will be prorated and paid by Cannon Host if Cannon Host institutes its right of cancellation. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.).
Cannon Host wishes to emphasize that in signing the Master Services Agreement or its equivalent, customer indemnifies Cannon Host for any violation of the Master Services Agreement or its equivalent, law or AUP that results in loss to Cannon Host or the bringing of any claim against Cannon Host by any third-party. This means that if Cannon Host is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against Cannon Host, plus costs and reasonable attorney's fees.
Disclaimer of Responsibility
Cannon Host is under no duty to look at each customer's or user's activities to determine if a violation of the AUPs has occured, nor do we assume any responsibility through our AUPs to monitor or police Internet-related activities. Cannon Host disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person's or party's violation of this policy.
All Sub-Networks, resellers and managed servers of Cannon Host must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation.
INDIRECT OR ATTEMPTED VIOLATIONS OF THE AUPs AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, SHALL BE CONSIDERED VIOLATIONS OF THESE AUPs BY YOU.
Master Services Agreement
This Master Services Agreement (the "Agreement") between Cannon Host ("Cannon Host") and the customer which is a signatory hereto ("Customer") is made effective as of the date indicated below the Customer signature on the initial Service Order Form ("Order Form") submitted by Customer and accepted by Cannon Host.
This Agreement states the terms and conditions by which Cannon Host will deliver and Customer will receive any or all of the services provided by Cannon Host, including bandwidth, managed services, professional/support services and content delivery. Each Order Form (with exhibits attached) submitted, accepted and executed by both parties is hereby incorporated by reference herein. This Agreement is intended to cover any and all Services ordered by Customer and provided by Cannon Host. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
2.Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
By submitting an Order Forms(s), Customer agrees to take and pay for (i) the Service(s) during the Initial Term and for any Renewal Term, and (ii) certain limited services and equipment needed by Customer on a "one-off" or emergency basis ("Supplemental Services") where such services are not included within the scope of the Services as described in the Order Forms(s). Customer agrees to pay Cannon Host the fees charged by Cannon Host for Supplemental Services, and hereby authorizes Cannon Host to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with Cannon Host's current policies and prices.
(a) Term Commencement.
The term for each Service will commence on the Service Commencement Date.
(b) Renewal Term(s).
Upon expiration of the Initial Term, the term shall be extended automatically for a period of thirty (30) days ("Renewal Term"), unless and until either party gives the other no less than thirty (30) days' written notice of a termination. The termination of any Service will not affect Customer's obligations to pay for other Service(s).
3. Fees and Payment Terms.
3.1 Fees and Expenses.
Customer will pay all fees due according to the prices and terms listed in the Order Form(s) and all other fees incurred by Customer related to Supplemental Services, Professional Services, reinstatement of service fees and fees for switching or upgrading servers, all in accordance with then current Cannon Host prices and policies.
3.2 Payment Terms.
On the Service Commencement Date for each Service, Customer will be billed (the "Initial Bill") an amount equal to (i) all non-recurring charges indicated in the Order Form(s) and (ii) the monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of each calendar month of the term. Monthly recurring charges for all months will be billed (the "Recurring Bill") in advance of the provision of Services. All other charges for Services received and expenses incurred for Supplemental or Professional Services during a month (e.g., bandwidth usage fees) will either be billed immediately or at the end of the month in which the Services were provided. Payment for all fees is due upon receipt of each Cannon Host invoice. All payments will be made in U.S. Dollars. Notwithstanding anything to the contrary in this Agreement, Cannon Host expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.3 Late payments.
Any payment not received within fifteen (15) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a "Payment Default") will accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer also shall pay to Cannon Host all expenses incurred by Cannon Host in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by Cannon Host.
Customer will be responsible for and will pay in full, except for taxes on Cannon Host net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
4. Intellectual Property Ownership.
This Agreement does not transfer from Cannon Host to Customer any Cannon Host Technology, and all right, title and interest in and to Cannon Host Technology will remain solely with Cannon Host. This Agreement does not transfer from Customer to Cannon Host any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with Customer. Cannon Host and Customer each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
5. Limited Warranties.
Each of the guarantees in the Order Form(s) is null and void if Customer fails to follow Cannon Host's Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty.
CANNON HOST DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CUSTOMER'S OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN THE ORDER FORM(S), CANNON HOST 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. CANNON HOST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. CANNON HOST DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM CANNON HOST'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). CANNON HOST CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY CANNON HOST DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6. Customer Obligations.
6.1 Warranties of Customer.
Customer represents and warrants that (i) Customer is at least eighteen (18) years of age; (ii) Customer possesses the legal right and ability to enter into this Agreement, and (iii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other Cannon Host customers' use of Cannon Host services. Customer assumes all risks related to processing of transactions related to electronic commerce.
(b) Breach of Warranties.
In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Cannon Host will have the right, in its sole discretion, to suspend or terminate immediately any Services.6.2 Compliance with Law and Rules and Regulations. Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by Cannon Host from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. Cannon Host may change the Rules and Regulations upon fifteen (15) days' notice to Customer, which notice may be provided by posting such new Rules and Regulations at the Cannon Host Site http:/www.Cannon Host.com/about/legal/acceptable_use.php. Customer may request a current copy of the Rules and Regulations by sending or faxing a request to Cannon Host. Customer agrees that it has received, read and understands the current version of the Rules and Regulations.
6.3 Third Party Rights.
Customer shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.7. Limitations of Liability.
7.1 Delays and Interruptions.
CANNON HOST SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND CANNON HOST SHALL HAVE NO LIABILITY THEREFOR. EXCEPT TO THE EXTENT OF CANNON HOST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER CANNON HOST NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO CANNON HOST'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF CANNON HOST'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE.
7.2 Consequential Damages.
EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
7.3 Notwithstanding anything else to the contrary contained in this Agreement, Cannon Host's maximum aggregate liability to Customer for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Customer to Cannon Host for the prior three (3) months.
7.4 Cannon Host may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships Cannon Host has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by Cannon Host and not by the Third Party Vendor. Neither Cannon Host nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM CANNON HOST OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CANNON HOST NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND CANNON HOST WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of (i) any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributorily caused by the other party) and (ii) any violation of or failure to comply with the Rules and Regulations. Customer further agrees to indemnify Cannon Host and its affiliates against any Losses which arise out of, or relate to any content provided by Customer or the customers/clients of Customer, and Customer will reimburse Cannon Host and its affiliates for all legal expenses, including reasonable attorneys' fees, incurred by Cannon Host and its affiliates in connection with any such Losses.
9.1 Termination Without Cause During Renewal Term.
This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days' prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 9.1, any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
9.2 Termination For Cause.
In addition to any other rights it may have under this Agreement or applicable law, Cannon Host may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a Payment Default, or (ii) Customer's breach or failure to comply with any other obligation of Customer under this Agreement including, but not limited to, its failure to comply with any of the terms of the Rules and Regulations or other policies of Cannon Host. Customer may terminate this Agreement if Cannon Host breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by Cannon Host under this Section 9.2, all remaining monthly recurring and other charges specified on the applicable Order Form(s) for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, Cannon Host reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules and Regulations or which Cannon Host believes in its sole discretion to be illegal or potentially harmful to others or may expose Cannon Host to harm or liability.
9.3 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4, 5, 7, 8, 9, 10 and 11.9.5 IP Addresses: Upon expiration, cancellation or termination of this Agreement, Customer shall relinquish any Internet protocol ("IP") numbers, addresses or address blocks assigned to Customer by Cannon Host or its network services supplier (but not the URL or top level domain connected therewith). Cannon Host reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
(a) "Customer Technology" means Customer's proprietary technology, including Customer's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.
(b) "Initial Term" means the minimum term for which Cannon Host will provide the Service(s) to Customer, as indicated on the Order Form(s).
(c) "Professional Services" means any non-standard professional, consulting or support service provided by Cannon Host to Customer.
(d) "Cannon Host Technology" means Cannon Host's proprietary technology, including Cannon Host Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Cannon Host or licensed to Cannon Host from a third party) and also including any derivatives, improvements, enhancements or extensions of Cannon Host Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art.
(e) "Renewal Term" means any service term following the Initial Term, as specified in Section 2.2.
(f) "Rules and Regulations" means the Cannon Host general rules and regulations governing Customer's use of Services, including, but not limited to, online conduct and Cannon Host's Acceptable Use Policy.
(g) "Service(s)" means the specific service(s) provided by Cannon Host pursuant to this Agreement.
(h) "Service Commencement Date" means the date Cannon Host will begin providing the Service(s) to Customer as indicated on the Order Form(s).
11. Use of Customer's Name for Marketing and Promotion.
Customer agrees that during the term of this Agreement Cannon Host may publicly refer to Customer, orally and in writing, as a Customer of Cannon Host in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
12. Miscellaneous Provisions.
Cannon Host shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer resulting, directly or indirectly, from any unforeseen or force majeure event. Cannon Host and Customer agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Cannon Host, and any attempted assignment or delegation without such consent will be void. Cannon Host may assign this Agreement in whole or part. Cannon Host also may delegate the performance of certain Services to third parties, including Cannon Host's wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. Cannon Host and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Cannon Host and Customer. Neither Cannon Host nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of Cannon Host and Customer in accordance with this Section 11.
Authorized representatives of Customer and Cannon Host have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date indicated below the Customer signature on the initial Service Order Form.