Net Atlantic, Inc. Acceptable Use Policy, Terms of Service, and General Conditions
Last revised July 7, 2008
1. DEFINITIONS The following capitalized terms will have the meanings set forth below for purposes of this Agreement:
1.1 "Customer" shall mean the person, 18 years of age, or over, or entity, regardless of said Customer's country or origin, with whom Net Atlantic, Inc. entered into this Agreement including said Customer's agents, servants, employees, officers, directors, advisers, and shareholders, if any.
1.2 "Net Atlantic, Inc." shall mean Net Atlantic, Inc. as well as its agents, servants, employees, officers, directors, advisers, and shareholders.
1.3 "Agreement" shall mean Net Atlantic, Inc.'s Acceptable Use Policy, Terms of Service, General Conditions and Pricing Schedule set forth at the Net Atlantic web site which Pricing Schedule is incorporated herein by this reference.
2. SERVICES
2.1 Services: Net Atlantic, Inc. will provide Customer with services in accordance with the terms and conditions of the Agreement.
3. COMPLIANCE WITH LAWS
3.1 Customer's Obligations to Comply with Laws: The Internet is a network of networks, and those networks exist internationally. There are many laws that pertain to the Internet and the traffic it carries. Customer shall abide by the laws and regulations of the localities where the Customer conducts business. Customer shall not use Net Atlantic, Inc.'s products or services in violation of any local, state, or federal law. These violations include (but are not limited to) credit card fraud, hacking (that is, attempting to gain unlawful access to private computer systems), slander, and the transmission of threats or harassment. Customer also warrants and represents that the Customer has not and will not (i) infringe or violate the rights of any third party including, but not limited to, intellectual property rights, patents, copyrights, trademarks, and trade secrets; and (ii) send, receive or use any materials or documents which are defamatory or obscene; and (iii) violate any right of privacy or publicity.
3.2 Jurisdiction and Venue: The Customer agrees and acknowledges that this Agreement is deemed to be made in the Commonwealth of Massachusetts and it and the legal relations between the parties hereto shall be governed and construed according to the laws of the Commonwealth of Massachusetts. Any suit or other legal proceeding which the parties commence to resolve any matter arising under or relating to any provision of this Agreement shall be commenced exclusively in the Essex Superior Court in Massachusetts or a District Court in Essex County Massachusetts or, if such Courts lack jurisdiction over any such suit or other legal proceeding, then such suit or other legal proceeding shall be commenced exclusively in the Federal District Court in Boston, Massachusetts. The Customer hereby consents to the jurisdiction of and venue of such Courts. No party may remove from Essex County or the Federal District Court in Boston any such suit or legal proceeding brought pursuant to this Agreement.
3.3 Compliance with Requests for Information: Net Atlantic, Inc. will not contest any request for information including, without limitation, information which a Customer might feel is private, if such information is sought via subpoenas, court orders or similar requests from lawyers, governmental entities, and law enforcement agencies regarding our Customers and Customers' use of our services. Customer shall not pursue any claim against Net Atlantic, Inc. with regard to the disclosure of any such information.
4. CUSTOMER'S OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES
4.1 Opt In Method: Email mailing lists hosted at Net Atlantic, Inc. must use either a Single Opt-In or a Confirmed Opt-In (COI) (sometimes called "double opt-in") subscription method. If Customer chooses to build lists through co-registration, Customer shall ensure that Customer receives permission for the Customer to send email to a list of email addresses obtained through co-registration subscriptions. Customer may be asked to stop mailing to addresses obtained from co-registration sources if those addresses generate an unacceptable number of complaints in Net Atlantic, Inc.'s sole discretion which discretion is final and non-reviewable and Customer shall abide by Net Atlantic, Inc.'s request in this regard.
4.2 Email: Customer shall not:
(a) send unsolicited bulk email (spam). It is the Customer's responsibility to ensure that all the email the Customer sends is welcome, and all recipients must explicitly and verifiably agree to receive such email. It is the Customer's responsibility to maintain documentation regarding subscription requests, confirmations, and unsubscription requests for so long as the recipient continues to receive email from the Customer;
(b) forge email header information, or obscure sender information in any way. Customer must use a valid return address controlled by the Customer for all email sent;
(c) re-subscribe addresses to a mailing list which have unsubscribed without a new, verified subscription request;
(d) associate Net Atlantic, Inc. with unsolicited bulk email in any way;
(e) send unsolicited bulk email (UBE) from another account to promote a web site hosted at Net Atlantic, Inc.;
(f) spam Usenet with an advertisement for a service hosted at Net Atlantic, Inc.;
(g) send solicited bulk email that does not contain a valid working unsubscribe function;
(h) send chain letters or hoaxes;
(i) purposely transmit viruses, worms, trojans, or other malicious code;
(j) send mail with the intention of harassing an individual or overwhelming a server; and
(k) maintain an open relay, open proxy or insecure form mail script.
4.3 Full Disclosure of Mailing List Subscriptions: Customer shall fully disclose all terms and conditions of each and every mailing list subscription. If Customer owns mailing lists, the Customer shall make adequate disclosures about how subscriber addresses will be used, including whether or not said addresses are subject to sale or trade with other parties. Additionally, the Customer shall fully disclose the nature and frequency of said mailings.
4.4 Fully Verified Opt-In Lists: If Customer acquires fully verified opt-in lists, the Customer shall examine the terms and conditions under which the addresses were originally compiled and determine that all recipients have in fact opted-in to the type of mailing list the Customer intends to operate. Lists must be used for their original purpose.
4.5 One subscription, One list: Customer shall not add any address to other lists without fully verifying the consent of the address owner. Customer shall not automatically subscribe existing subscribers to a new list.
4.6 Active Abuse and Postmaster Email Addresses: Customer shall maintain active abuse and postmaster email addresses (abuse@yourdomain.com and postmaster@yourdomain.com). Customer shall read and act in a timely fashion to all mail sent to those email addresses.
4.7 Customer Information: For domain name registrations and web hosting services, the Customer is required to provide Net Atlantic, Inc. with all the information necessary for a complete registration and to update this information accordingly. The Customer warrants that all the data provided on the registration is correct and up to date. Providing inaccurate data or failure to promptly update information shall be deemed as a violation of this Agreement.
4.8 Required Web Site Information: Customer shall maintain Customer's company information on Customer's web site. Company information shall include Customer's company name, address, city, state or province, country, and telephone number, and email address(s). If Customer hosts its web site(s) with Net Atlantic, Inc., Customer shall have a privacy policy and prominently display a link to that policy if the site collects information from the public. After a new domain name has been added to the Net Atlantic, Inc. web servers, Net Atlantic, Inc. reserves the right to upload an 'under construction' placeholder type of web page that will demonstrate that the web site is operational and ready for the customer's web site. This 'under construction' type of web page may or may not contain advertising messages from Net Atlantic, Inc. or from another entity. Upon upload of the customer web site, the 'under construction' web page is replaced with the customer web site home page.
4.9 Domain Name Registration and Renewals: Customer shall be responsible for insuring that the Customer's domain name(s) does not expire. Although Net Atlantic, Inc. does register and renew domain names as a service/courtesy to Customers, each Customer shall be and is responsible for ensuring that its domain name(s) does not expire. Net Atlantic, Inc. assumes no responsibility whatsoever for the expiration of any of its Customer's domain names. That responsibility rests exclusively with each Customer.
4.10 Customer Shall Not Disrupt or Interfere: Customer shall not interfere with, disrupt, or deny service to any other individual or network site. This includes using any means to intentionally degrade or disable the delivery of any legitimate data (i.e. denial of service attack). Customer shall not attempt to gain unauthorized entry to any site or network ("hacking" or "cracking"). Customer shall not attempt to circumvent the security measures of any host, network or account.
4.11 Content Received: Customer shall assume all responsibility for the content received from the Internet when using Net Atlantic, Inc.'s services and accounts. The Customer shall abide by all Trademark, Copyright and Patent laws pertaining to the content received over the Internet or from Net Atlantic, Inc.'s Web Pages, Manuals, Documents, distribution media or White Papers. Customer agrees to defend with counsel of Net Atlantic, Inc.'s choice, indemnify, and hold harmless Net Atlantic, Inc. from any inappropriate, offensive, questionable or illegal materials obtained over the Internet or stored on equipment owned or operated by Net Atlantic, Inc.
4.12 Substitution: It is forbidden for a Customer to substitute content with content from another non-customer. Usage of the Net Atlantic, Inc. network is for the sole use of the Customer. Customer shall not use the Net Atlantic, Inc. network or services for another entity. There is no transfer of services allowed, either temporary or permanent.
4.13. Equipment Security: Customer shall assume exclusive responsibility and Net Atlantic, Inc. shall assume NO responsibility for the security of Customer's equipment while using the services of Net Atlantic, Inc. Customer is aware that linking Customer's computer to the Internet either directly or through Net Atlantic, Inc. makes Customer's equipment vulnerable to hackers, viruses, attacks, denial of service, spoofing, eavesdropping, sniffing, spamming, breaking passwords, harassment, fraud, forgery, imposturing, electronic trespassing, tampering, hacking, nuking, system contamination including without limitation use of viruses, worms and trojan horses causing unauthorized, damaging or harmful access and/or retrieval of information and data on Customer's computer and other forms of activity that may be harmful or unlawful.
4.14 Breach of Warranties: In the event of any material breach of any of the foregoing warranties and representations, in addition to any other remedies available at law or in equity, Net Atlantic, Inc. shall have the right to immediately, in Net Atlantic, Inc.'s sole discretion, suspend its services if reasonably necessary, in Net Atlantic, Inc.'s sole discretion, to prevent any harm to Net Atlantic, Inc.'s customers, Net Atlantic, Inc.'s network, and Net Atlantic, Inc.'s equipment.
4.15 Questions Regarding Practices: If Customer is uncertain if a possible use or action is permitted pursuant to the terms and conditions of this Agreement, Customer shall contact and receive permission from Net Atlantic, Inc. prior to engaging in any such use or action. Net Atlantic, Inc. shall have sole discretion in determining whether such use or action is permitted and Net Atlantic, Inc.'s decision in this regard is final and non-reviewable.
4.16 Customer Assumes Liability and Responsibility: Customer shall be exclusively liable and responsible for any claims brought or threatened on account of the content of Customer's web site viewed by children and minors through the Internet and the services of Net Atlantic, Inc. and for all emails sent to or received by children or minors in any way connected to Customer's web site.
4.17 Web Hosting Customers – Resource Usage: In order to keep our servers running at optimal levels, any sites running a process that requires more than 8MB of memory, more than 30 CPU seconds, or uses more than 10% of all available system resources at any time may be required to upgrade their hosting plan, move up to a dedicated solution, or to be hosted elsewhere. In the interests of server performance, Net Atlantic reserves the right to suspend services until a solution is found. If the Client refuses to comply with this Section, then Net Atlantic has the right to terminate the services provided to the Client without any refunds of the unused portion prepaid by the Client.
4.18 Web Hosting Customers – Traffic Policy: Net Atlantic allows for very generous traffic, and most sites never exceed 500MB per month, unless they offer shareware, sound, video, image and multimedia archives, are mirror sites or any site whose primary purpose is file distribution. Net Atlantic customers are discouraged from storing any files that cause excessive traffic on Net Atlantic servers. Using your site for storage or for hot linking of your Net Atlantic files from another site is strictly forbidden. Please contact Net Atlantic Technical Support team for more information. Again, 99% of the sites do not fall into this category and never reach our traffic limits.
4.19 Web Hosting Customers - Regarding Multimedia sites, Video sites, Audio sites, streaming media sites, file storage sites, or usage of Net Atlantic for "remote" file hosting: Sites designed for serving and sharing multimedia/video, audio and streaming media are prohibited. Sites designed specifically for file storage or file sharing, or customers using web hosting services specifically for file storage purposes are prohibited. Usage of Net Atlantic to store files remotely accessed as content within another site is prohibited. Any violations of these or other activities that Net Atlantic deems abusive to Net Atlantic network or servers may result in immediate termination and cancellation of the offending account. No refunds will be given to accounts cancelled due to violations of these prohibited activities.
4.20 Domain Name Customers – Customers agree that Net Atlantic will not be liable for any loss of registration and use of the customer's domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if Net Atlantic has been advised of the possibility of such damages.
5. NET ATLANTIC, INC.'S OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES
5.1 Service Warranty: Net Atlantic, Inc. warrants that its services under this Agreement will be performed in a workmanlike manner in accordance with reasonable commercial standards.
5.2 Protecting Email and Documents: Net Atlantic, Inc. will make a reasonable effort to protect the Customer's Email and documents from loss or access by unauthorized parties. However, Net Atlantic, Inc. makes no guarantee of the Privacy of Electronic Mail or Documents stored on equipment owned by Net Atlantic, Inc. or transmitted through our network. If security is an important issue, Net Atlantic, Inc. strongly recommends that Customer encrypt sensitive or private documents or electronic mail before transmission through Net Atlantic, Inc.'s network or the Internet. Customer shall not pursue any claim against Net Atlantic, Inc. including its agents, servants, employees, officers, directors, advisers, and shareholders with regard to the loss of files stored on or transmitted via equipment owned or used by Net Atlantic, Inc. Net Atlantic, Inc. strongly recommends Customer maintain backup copies of Customer files including web pages, web graphics, web documents, email addresses, email list information, email subscriber information, email delivery statistics, and web traffic statistics.
5.3 Lack of Network Security: Customer understands that the Internet and other various networking communication mediums are not secure, unless explicitly specified as such, and may be subject to interception or loss. Net Atlantic, Inc. makes no warranties of any kind including, but not limited to, express and implied warranties, concerning the data or information available through the Net Atlantic, Inc.'s servers. In no event will Net Atlantic, Inc. be liable to Customer or someone acting on Customer's behalf for any indirect, incidental, or consequential damages or losses arising out of Net Atlantic, Inc.'s services or any products provided under this Agreement, even if Net Atlantic, Inc. caused or contributed to cause said damages or losses.
5.4 No Other Warranty: Except for the express representations and warranties set forth in Sections 5.1, 5.2, and section 5.3, Net Atlantic, Inc. makes no other representations or warranties, and hereby disclaims, to the fullest extent permitted by law, all warranties of merchantability, fitness for a particular purpose, and non-infringement. Net Atlantic, Inc. does not warrant that the services it will provide pursuant to this Agreement will be uninterrupted, error-free or completely secure.
6. FEES, PAYMENTS AND REFUNDS
6.1 Fees: Current fees and charges for Net Atlantic, Inc.'s services can be found in the Net Atlantic, Inc. Pricing Schedules at the Net Atlantic web site. Net Atlantic, Inc. reserves the right to change its Pricing Schedule at any time
6.2 Billing and Payment: Payment of fees and charges are due in accordance with the Pricing Schedule in the Net Atlantic, Inc. web site. All payments will be made in U.S. dollars. Amounts past due will be subject to an interest charge equal to one percent per month or the highest rate permitted by law, whichever is higher. In the event Net Atlantic, Inc., directly or via a third party, incurs any charges, costs, and expenses including without limitation attorneys' fees, collecting or attempting to collect fees or payments owed by Customer under the Agreement, Customer shall be liable to Net Atlantic, Inc. for all such charges, costs, and expenses in addition to the full amount owed under this Agreement to the fullest extent permitted by law.
6.3 Taxes: Customer shall be responsible for and agrees to pay in full any and all taxes resulting from this Agreement or any activities under this Agreement except for taxes based upon Net Atlantic, Inc.'s income.
6.4 Refunds: Refunds shall be made within 90 days. There shall be no refund of setup fees or domain registration fees for any reason. Net Atlantic, Inc. will not refund to the Customer setup fees or domain registration fees paid to Net Atlantic, Inc. There shall be no refund on any prepaid services.
6.5 Charges: Net Atlantic, Inc. will not be responsible for any charges the Customer incurs as a result of erroneous charges, against a payment method, or as a result of failing to cancel services or automatic payments in a timely fashion. A reactivation or administration fee will apply for services suspended due to billing issues.
6.6 Payment Information: Submitting payment information or credit card information on an account authorizes Net Atlantic, Inc. to use that information for payment on services rendered to that account.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Failures: Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) shall not be liable to Customer or anyone else for any damage whatsoever caused in whole or in part by mistakes, omissions, interruptions, deletions of files, lost data, errors, defects, delays and operation, or transmission or failure of performance whether or not such damages are caused in whole or in part by Net Atlantic, Inc. or by acts of God, communication failure, network failure, transmission error, theft, destruction or unauthorized access to Net Atlantic, Inc.'s records, programs or services.
7.2 Server Issues: Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) shall not be liable to Customer or anyone else for any damage, loss, or injury resulting from the use of the Net Atlantic, Inc.'s servers, caused in whole or in part, by contingencies beyond Net Atlantic, Inc.'s control in procuring, compiling, interpreting, reporting, maintaining, or delivering Internet services. Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) shall not be liable to Customer or anyone else for any decision made or action or inaction taken by Customer. Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) shall not be liable to Customer or anyone else for any direct, consequential, special, incidental, indirect, or similar damages, even if Net Atlantic, Inc. was advised of the possibility of such damages, resulting from the use or inability to use the Net Atlantic, Inc. servers and services. Net Atlantic, Inc. disclaims any warranty that its services shall be 'error free' or without interruption.
7.3. Limitation of Liability: Subject to Sections 7.1 and 7.2, to the fullest extent permitted by law and excepting only the right to terminate found under Section 8, Customer understands and agrees that if Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) is determined to have caused the Customer, or clients or subscribers of the customer if applicable, any injuries or damages whatsoever including, but not limited to, personal injury, property damage, special damage, incidental damage, consequential damage, indirect damage, lost profits, lost savings, damages resulting from lack of use or loss or disclosure of content or data, or security problems, or messages deleted or not delivered, or the transmission or reception of content, or damages due or allegedly due to the failure of Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) to perform any obligations, representations, or warranties under this Agreement in any respect whatsoever, the collective liability of Net Atlantic, Inc. and its agents, servants, employees, officers, directors, advisers, and shareholders) shall be limited to the Customer's first six (6) monthly payments for services pursuant to this Agreement as reflected in the Pricing Schedule or $200.00 whichever is less and this liability shall be exclusive. The limitation of liability set forth in this Section shall apply regardless of the theory of recovery including, but not limited to, negligence, breach of Agreement, or breach of warranty, regardless of whether any such injuries or damages resulted directly or indirectly to persons or property or business entities, and regardless of whether such injuries or damages arose from or allegedly arose from the performance or non-performance of the obligations, representations, and warranties by Net Atlantic, Inc. or its agents, servants, employees, officers, directors, advisers, and shareholders under this Agreement.
7.4 Increase Liability: In the event Customer wants Net Atlantic, Inc. (including its agents, servants, employees, officers, directors, advisers, and shareholders) to assume greater liability, Customer is free to negotiate with Net Atlantic, Inc. for greater liability at an additional cost to Customer. However, any such agreement shall not be binding unless it is reduced to writing and signed by both parties in advance of any event which might trigger any increased liability.
7.5 Unauthorized Exposure: To the extent permitted by law and in addition to any other remedies available under this Agreement to Net Atlantic, Inc., Customer agrees to defend with counsel of Net Atlantic, Inc.'s choice, indemnify, and hold harmless Net Atlantic, Inc. including its agents, servants, employees, officers, directors, advisers, and shareholders regarding any actual or alleged unauthorized exposure to or disclosure of information or materials the Customer listed or sent, or did not send, on or through Net Atlantic, Inc.'s systems to other users, the general public or any other person or entities who was not intended to receive or view such information.
7.6 Domain Name Disputes: Any domain registration challenged by a third party or in the event a domain name dispute arises with a third party, the Customer agrees to indemnify and hold Net Atlantic, Inc. harmless pursuant to the terms and conditions set forth in this Agreement. Net Atlantic, Inc. reserves the right to deny, cancel or transfer any registration that it deems necessary, in its discretion, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Net Atlantic, Inc. Net Atlantic, Inc. also reserves the right to freeze a domain name during resolution of a dispute.
7.7 Claims Against Net Atlantic: To the extent permitted by law and in addition to any other remedies available under this Agreement to Net Atlantic, Inc., if any claim, suit, action, arbitration proceeding or other proceeding is commenced or brought against or involving Net Atlantic, Inc. or its agents, servants, employees, officers, directors, advisers, and shareholders arising or allegedly arising out of Customer's actions including, but not limited to, web site activity and emailing activity or Customer's obligations assumed under this Agreement, then Customer agrees to defend with counsel of Net Atlantic, Inc.'s choice, indemnity, and hold harmless Net Atlantic, Inc. and its agents, servants, employees, officers, directors, advisers, and shareholders from and against all costs, liabilities, judgments, settlement amounts, losses, damages, expenses, including all Attorneys' fees, resulting from or arising out of or allegedly resulting from or arising out of any such claim, suit, action, arbitration proceeding or other proceeding.
7.8 Breach of Agreement: To the extent permitted by law and in addition to any other remedies available under this Agreement to Net Atlantic, Inc., if Customer's breach of any obligations under this Agreement causes Net Atlantic, Inc. including its agents, servants, employees, officers, directors, advisers, and shareholders to incur any costs, liabilities, judgments, settlement amounts, losses, damages, or expenses, including Attorneys' fees, then Customer shall reimburse Net Atlantic, Inc. for all such costs, liabilities, judgments, settlement costs, losses, damages, expenses, including Attorneys' fees, in addition to all costs and expenses, including Attorneys' fees, incurred in enforcing the terms of this Section.
8. TERM AND TERMINATION
8.1 Right to Terminate: Either Net Atlantic, Inc. or the Client can terminate services at any time for any reason or for no reason. Net Atlantic, Inc. reserves the right to terminate the account of any Customer who violates any provision of the Agreement including, but not limited to, Net Atlantic, Inc.'s Acceptable Use Policy, Terms of Service, and General Conditions without refund and without prior notice. The Customer will be liable for any damages or expenses incurred by Net Atlantic, Inc. as a direct or indirect result of Customer's violation of any provision this Agreement including, but not limited to, Net Atlantic, Inc.'s Acceptable Use Policy, Terms of Service, and General Conditions. Further, Net Atlantic, Inc. reserves the right to charge a clean up fee of $50 per spam message complaint received by Net Atlantic, Inc. arising from Customer's mailing list. Customer remains responsible for all fees and charges incurred prior to termination or cancellation. Unless an explicit contract has been signed by both parties that specifically obligates the Client or Net Atlantic, Inc. to a certain minimum time period of services (such as with a dedicated server), either Net Atlantic, Inc. or the Client can terminate services at any time for any reason or for no reason. For the security and protection of the Customer, Customer must cancel services with the Net Atlantic cancellation form. Once the cancellation is complete, a confirmation email is sent to the customer acknowledging the cancellation.
8.2 Termination for Cause: Either party has the right to terminate this Agreement if (i) the other party breaches any material term or condition in the Agreement and fails to cure such breach within fourteen days (unless a different time frame, which different time frame shall govern, is noted elsewhere in the Agreement) after receipt of notice of the same; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (iv) Net Atlantic, Inc. changes any material term or condition of the Agreement pursuant to Section 10.1 below.
8.3 Effect of Termination: Upon the effective date of the expiration or termination of the Agreement: (i) Net Atlantic, Inc. will immediately cease providing services pursuant to the Agreement; and (ii) any and all payment obligations of the Customer under this Agreement will become immediately due. Unless otherwise noted in the Agreement, neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms; provided, however, the Customer will remain liable for all applicable fees and costs incurred prior to any such termination hereunder.
8.4 Survival: Sections 3.1, 3.2. 3.3, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 5.2, 5.3, 5.4, 6.2, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 8.1, 8.3, 8.4, 10.2, 10.4, 10.5, 10.6, 10.7, and 10.8 shall survive any termination of this Agreement.
9. MARKETING
9.1 Marketing: Customer may display a banner indicating that Customer's web site is being hosted by Net Atlantic and permit users of Customer's web site to access Net Atlantic, Inc.'s web site by direct link from the banner, provided the appearance of the banner is approved by Net Atlantic, Inc. in advance. Net Atlantic, Inc. may reference Customer by trade name and trademark in Net Atlantic, Inc.'s marketing materials and on Net Atlantic, Inc.'s web site. For mailing list customers, Net Atlantic may include a footer icon at the bottom of outgoing email from its network. At the request of the customer, Net Atlantic, Inc. will remove the footer icon from all outgoing email.
10. MISCELLANEOUS
10.1 Modifying this Agreement: Net Atlantic, Inc. reserves the right to make modifications to the Agreement at any time without advance notice by posting the revised Agreement on the Net Atlantic, Inc. web site. If Customer is dissatisfied with any material modification, Customer can terminate this Agreement pursuant to the procedures set forth in Section 8 above.
10.2 Nothing in this Agreement will be construed to imply a joint venture, partnership, agency relationship, employer-employee or franchiser-franchisee relationship between the parties. Net Atlantic, Inc. and the Customer are separate and independent contractors.
10.3 Assignment: Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party which consent shall be given or withheld in the sole discretion of the party being asked to consent to the same. In the event the parties agree in writing to an assignment, such successor and/or assign is bound by all the terms and conditions of the Agreement.
10.4 Force Majeure: Either party will not be in default of or considered to have breached its obligations under this Agreement to the extent its performance is delayed or prevented by causes beyond its control including, but not limited to, acts of God, earthquakes, floods, embargo, riots, sabotage, acts of war, labor strikes, network outage, outage of SMS-Carrier or any part of the network of any Wireless Carrier, utility or transmission failures, fire or labor disturbances.
10.5 Non-Solicitation: During the term of this Agreement and for a period of one year immediately after termination of this Agreement, each party agrees that it will not, directly or through a third party, solicit or attempt to solicit for employment any persons employed by the other party.
10.6 Severability: 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 the Agreement will remain in full force and effect.
10.7 Notices: All notices called for under this Agreement shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier, to the recipient's address set forth in the Agreement or to such other address or addresses as either party may specify in writing to the other. Notice will be deemed given the date of personal delivery, the third business day after mailing, or the next business day after delivery to such courier (unless the return receipt or the courier's records evidence a later delivery).
10.8 Entire Agreement: This Agreement constitutes the entire agreement between the parties and may only be modified by an instrument in writing signed by both parties. This Agreement supercedes and cancels any and all prior proposals (oral or written), understandings, representations, conditions, warranties, covenants, and any other communications between the parties which relate to the subject matter of this Agreement.
By ordering services from Net Atlantic, Inc. or clicking the "I Accept" button, Customer agrees to the terms and conditions of this Agreement and any documents incorporated therein by reference. The Customer further agrees that this Agreement is a legally binding contract between the Customer and Net Atlantic, Inc. Any rights not expressly granted herein are reserved by Net Atlantic, Inc.