Net Atlantic's Terms of Service
PLEASE REVIEW THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT"), AS IT CONSTITUTES AN AGREEMENT BETWEEN YOU (“CLIENT") AND NET ATLANTIC, INC. ("NET ATLANTIC”) WITH RESPECT TO CLIENT'S USE OF NET ATLANTIC'S SOFTWARE AND SERVICES AND APPLICATIONS (THE "SERVICES"). BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
Last revised September 30, 2014
The following capitalized terms will have the meanings set forth below for purposes of this Agreement:
1.1 "Client" shall mean the person, of legal age, or entity, with whom Net Atlantic, Inc. entered into this Agreement including said Client's agents, employees, officers, directors, advisers, and shareholders, if any.
1.2 "Net Atlantic, Inc." shall mean Net Atlantic, Inc. including its agents, employees, officers, directors, advisers, and shareholders.
1.3 "Agreement" shall mean Net Atlantic, Inc.'s Terms of Service including any executed exhibits or attachments set forth at the Net Atlantic web site which is incorporated herein by this reference at www.netatlantic.com.
2.1 Services: Net Atlantic, Inc. will provide Client with services in accordance with the terms and conditions of this Agreement.
2.2 Intellectual Property: Net Atlantic, Inc. retains all rights to its intellectual property and custom development provided to Client.
3. COMPLIANCE WITH LAWS
3.1 Client's Obligations to Comply with Laws: Client shall abide by and not use Net Atlantic's products or services in violation of any local, state and U.S. federal laws and regulations where Client conducts business. In addition, client shall abide by and not use Net Atlantic's products or services in violation of the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act) and the Canadian Anti-Spam Law (CASL). These violations include, but are not limited to, credit card fraud, hacking or attempting to gain unlawful access to computer systems, slander, libel, and the transmission of threats or harassment. Client warrants and represents that Client 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 rights of privacy or publicity.
3.2 Jurisdiction and Venue: This Agreement is agreed to by the parties and governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Any legal enforcement of any provision of this Agreement shall be commenced in the Essex Superior Court in the Commonwealth of Massachusetts or a District Court in Essex County in the Commonwealth of Massachusetts without regard to its conflict of law principles.
3.3 Compliance with Requests for Information: Net Atlantic will provide Client information requested, if such information is sought via subpoenas, court orders or similar written requests from governmental regulators and/or entities, and agencies regarding Client and Client's use of Net Atlantic services. Net Atlantic will notify Client in writing of any such request prior to providing any Client information to allow Client sufficient time to respond to the request, unless such notice is prohibited by law. Client shall not pursue any claim against Net Atlantic with regard to the disclosure of any such information.
4. CLIENT'S OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES
4.1 Opt-In Method: Email mailing lists hosted at Net Atlantic must use a Single Opt-In, a Confirmed Opt-In (COI), or Double Opt-In subscription method. Net Atlantic reserves in its sole discretion, the right to request Client to immediately stop mailing to email addresses obtained from co-registration, email addresses purchased or rented from a third party, or other sources which may or may not use appropriate opt-in methods, if those addresses generate an unacceptable number of complaints.
4.2 Email: Client shall comply with the requirements of the U.S. CAN-SPAM Act of 2003 and CASL. The Client shall not:
(a) send unsolicited bulk email (spam). It is Client's responsibility to ensure that all the email the Client sends is welcome, and all recipients must explicitly and verifiably agree to receive such email. It is the Client's responsibility to maintain documentation regarding subscription requests, confirmations, and unsubscribe requests for so long as the recipient continues to receive email from the Client;
(b) forge email header information, or obscure sender information in any way. Client must use a valid return address controlled by the Client 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 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;
(f) spam Usenet with an advertisement for a service hosted at Net Atlantic;
(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: If requested by Net Atlantic, Client shall fully disclose all terms and conditions of each and every mailing list subscription. If Client owns mailing lists, Client 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 Client shall fully disclose the nature and frequency of said mailings.
4.4 Fully Verified Opt-In Lists: If Client acquires fully verified opt-in lists, the Client 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 Client intends to operate. Lists must be used for their original intended purpose.
4.5 One Subscription, One List: Client shall not add any address to other lists without fully verifying the consent of the address owner. Client shall not automatically subscribe existing subscribers to a new list.
4.6 Active Abuse and Postmaster Email Addresses: Client shall maintain active abuse and postmaster email addresses (email@example.com and firstname.lastname@example.org). Client shall read and act in a timely fashion to all email sent to those email addresses.
4.8 Client Information: For domain name registrations and web hosting services, Client shall provide Net Atlantic with all information to complete and/or update the registration. Client shall provide all current, complete, and accurate data on the registration.
4.9 Domain Name Registration and Renewals: Client shall insure that Client's domain name(s) does not expire. Client can request that Net Atlantic register or renew a domain name. Net Atlantic disclaims any liability whatsoever for the intended or unintended expiration of any of Client's domain names. Client is solely, fully, and totally responsible for the registration and all subsequent renewals of Client's domain name.
4.10 Client Shall Not Disrupt or Interfere: Client shall not interfere with, disrupt, or deny service to any entity or network site. By example, but not by limitation thereof, this includes using any means to intentionally degrade or disable the delivery of any legitimate data by denial of service attack. Client shall not attempt to or gain unauthorized access to any site or network by hacking or cracking. Client shall not attempt to or circumvent the security measures of any host, network or account.
4.11 Content Received: Client shall be responsible for all content received from the Internet when using Net Atlantic's services and accounts. The Client shall comply with all trademarks, copyright, and patent laws and regulations pertaining to the content received over the Internet or from Net Atlantic's web pages, manuals, documentation, distribution media, or white papers. Client shall defend, indemnify, and hold harmless Net Atlantic from any action(s), liability, or damages resulting from inappropriate, offensive, questionable, or illegal materials obtained over the Internet or stored on equipment owned or operated by Net Atlantic.
4.12 Use of Client Data: Client hereby acknowledges that Net Atlantic may anonymize (remove identifying particulars for statistical or other purposes) Client data so that it can be shared or sold with its service providers and partners. In no event will any personally identifiable information be shared. Net Atlantic will not, and does not, share, rent, or sell, email addresses.
4.13 Substitution: Client's usage of the Net Atlantic network is for the sole use of Client. No transfer of services or substitution of content for or on behalf of another entity whether a client or non-Client is allowed on either a temporary or a permanent basis.
4.14. Equipment Security: Client shall be solely responsible for the security of Client's equipment and software while using the Services of Net Atlantic. Client is aware that linking Client's computer to the Internet either directly or through Net Atlantic makes Client's equipment and software potentially vulnerable to interruption, damage, and loss of data caused by 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 Client's computer and other forms of activity resulting in damage(s) and/or liability.
4.15 Breach of Warranties: In the event of a breach (es) of any of the warranties and representations in this Agreement, in addition to any other remedies available at law or in equity, Net Atlantic shall have the right to immediately, in Net Atlantic's sole discretion, suspend its services, if reasonably necessary, to prevent any harm to Net Atlantic's Clients, network, and equipment.
4.16 Authorization Regarding Practices: Client shall contact and receive authorization from Net Atlantic prior to engaging in any use or action not authorized under this Agreement. Net Atlantic shall have sole discretion in determining whether such use or action is permitted.
4.17 Client Liability and Responsibility: Client shall be exclusively liable and responsible for any claims brought or threatened on account of the content of Client'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 Client's web site. Client shall defend, indemnify, and hold harmless Net Atlantic from any action(s), liability, or damages resulting from or threatened from a result of Client's content being inappropriate, offensive, questionable, or illegally viewed by children or minors by web, email or other internet protocol.
4.18 Web Hosting Clients - Resource Usage: Any Client site(s) running a process requiring more than 8MB of memory, more than 30 CPU seconds, or using more than 10% of all available system resources at any time may be required by Net Atlantic to upgrade Client's hosting plan, move up to a dedicated solution, or to be hosted elsewhere. Net Atlantic reserves the right to suspend services until a solution is found. If Client fails to comply, then Net Atlantic reserves the right to terminate the services provided to Client without any pro-rata refund of the unused portion prepaid by Client.
4.19 Web Hosting Clients - Traffic Policy: Client shall not store any files that may cause excessive traffic on Net Atlantic servers. Client is not authorized to use Client's site for storage or for hot linking of Client's Net Atlantic files from another site. For further information about size and use, contact Net Atlantic Technical Support team at www.netatlantic.com.
4.20 Web Hosting Clients - Regarding multimedia sites, video sites, audio sites, streaming media sites, file storage sites, or usage of Net Atlantic for "remote" file hosting: Client is not authorized to use the sites for serving and sharing multimedia/video, audio, and streaming media. Client is authorized to use the sites for file storage or file sharing; however, Client's use of web hosting services specifically for file storage purposes or to store files remotely accessed as content within another site is prohibited. Any breach of these terms defined within this Section 4 as determined by Net Atlantic in its sole discretion, may result in termination and cancellation of Client's account. No pro-rata refund will be refunded to Client by Net Atlantic for termination due to a breach of any of these terms.
4.21 Domain Name Clients: Client agrees that Net Atlantic will not be liable for any loss resulting from the loss of registration or renewal of any domain name, and Net Atlantic's use of Client's domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits, lost web site traffic, lost email, lost internet orders) 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.
4.22 SMS and WAP Clients: Net Atlantic does not support and will not tolerate the delivery of unsolicited messages ("SPAM") through any email, text messaging, or internet network of any kind. Client acknowledges and agrees that the Services shall not be used fraudulently or in connection with any criminal activity; or to send, receive, upload, download, use or re-use any material which is offensive, abusive, indecent, defamatory, obscene, menacing, or in breach of copyright, confidence, privacy, or any other rights; or to cause annoyance, inconvenience or needless anxiety; or to send unsolicited advertising or promotional material or any other unsolicited information.
5. NET ATLANTIC, INC.'S OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES
5.1 Service Warranty: Net Atlantic warrants that its Services under this Agreement will be performed in a professional manner in accordance with reasonable industry standards.
5.2 Protecting Email and Documents: Net Atlantic will make reasonable efforts to protect the Client's email and documents from loss or access by unauthorized parties. However, Net Atlantic makes no guarantee of the Privacy of Electronic Mail or Documents stored on equipment owned by Net Atlantic or transmitted through our network. If security is an important issue, Net Atlantic strongly recommends that Client shall encrypt sensitive or private documents or electronic mail before transmission through Net Atlantic's network or the Internet. Client shall maintain daily backup copies of Client 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: Client 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 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's servers. In no event will Net Atlantic be liable to Client or someone acting on Client's behalf for any indirect, incidental, or consequential damages or losses arising out of Net Atlantic's services or any products provided under this Agreement, even if Net Atlantic 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 5.3, Net Atlantic makes no other representations or warranties, and hereby disclaims all warranties of merchantability and fitness for a particular purpose. Net Atlantic 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's Professional, Enterprise and Platinum services are listed in the Net Atlantic Pricing Schedules on the Net Atlantic web site. Fees are billed monthly in advance, whether or not the Service is being used or deactivated due to compliance requirements. For email marketing accounts, fees are based on a total of all messages sent through Net Atlantic's servers, regardless of the status of receipt by intended recipients. If the total of email sends exceeds the current monthly pricing level, the account will automatically be invoiced for the amount of overage sends per the Client agreement. For use of the StrongView™ On-Demand edition, fees will be paid based on individual contract terms. Net Atlantic reserves the right to charge fees for additional functionality implemented by Client including API use, Transaction Processing, External Database Integration Feature, Dynamic Content, Web Analytics Integrations, professional services, development of custom templates and certain services performed by the Support Services Department, and CRM Integration. Prepaid postage is non-refundable, and expires within twelve (12) months of purchase date. Overage fees and abuse violation cleanup fees may apply. Net Atlantic reserves the right to change its Pricing Schedule at any time.
6.2 Billing and Payment: Payment of fees and charges are due by Client net thirty (30) days from the receipt of an invoice from Net Atlantic. All payments must be made in U.S. dollars. A minimum charge of one month applies to services provided and then cancelled or terminated within the first month of service. 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, directly or via a third party, incurs any charges, costs, and expenses including attorneys' fees, or collecting or attempting to collect fees or payments owed by Client under the Agreement, Client shall be liable to Net Atlantic for all such charges, costs, and expenses in addition to the full amount owed under this Agreement.
6.3 Taxes: Client shall be responsible for and agrees to pay any and all taxes resulting from this Agreement or any activities under this Agreement except for taxes based upon Net Atlantic's income.
6.4 Refunds: Refunds shall be made by Net Atlantic to the Client within ninety (90) days. Client setup fees or domain registration fees paid by Client to Net Atlantic are non-refundable. There shall be no pro-rata refund for partial months on any contracted prepaid service or unused postage.
6.5 Charges: Net Atlantic is not responsible for any charges Client 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 to use that information for payment on Services rendered to that account.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Failures: Net Atlantic or Net Atlantic's agents, employees, officers, directors, advisers, and shareholders shall not be liable to Client or anyone else for any damage(s) caused by mistakes, omissions, interruptions, deletions of files, lost data, errors, defects, delays in operation, service interruptions, or failure of performance whether or not such damage(s) are caused by Net Atlantic or by acts of God, communication failure, network failure, transmission error, service interruptions, terrorism, theft, destruction or unauthorized access to Net Atlantic's records, programs or Services.
7.2 Server Issues: Net Atlantic or Net Atlantic's agents, servants, employees, officers, directors, advisers, and shareholders shall not be liable to Client or anyone else for any damage(s), loss, or injury resulting from the use of the Net Atlantic's servers, caused by contingencies beyond Net Atlantic's control in procuring, compiling, interpreting, reporting, maintaining, or delivering Internet, webhosting, Ecommerce, data, hosting, or email Services. Net Atlantic or Net Atlantic's agents, servants, employees, officers, directors, advisers, and shareholders shall not be liable to Client or anyone else for any decision made, action or inaction taken by Client.
7.3. Limitation of Liability: Subject to Sections 7.1 and 7.2, as permitted by law, and except for the right to terminate under Section 8, Client agrees that if Net Atlantic or Net Atlantic's agents, employees, officers, directors, advisers, and shareholders is determined to have caused Client, or Client's clients or subscriber's Client, any injuries or damages including, but not limited to, personal injury, personal or real property damage, the collective liability of Net Atlantic and/or its agents, employees, servants, officers, directors, advisers, and shareholders shall be limited to Client'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 Section 7.3 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 or its agents, servants, employees, officers, directors, advisers, and shareholders under this Agreement. EXCEPT FOR THE LIABILITIES EXPRESSLY STATED ABOVE OR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS TO WHICH THE FOLLOWING LIMITATION OF LIABILITY SHALL NOT APPLY, NEITHER PARTY SHALL BE LIABLE, WHETHER IN AN ACTION OF NEGLIGENCE, CONTRACT, TORT OR BASED ON A WARRANTY OR OTHER LEGAL THEORY, IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, OR COSTS OR PROCUREMENT OR SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT.
7.4 Increased Liability: In the event Client wants Net Atlantic or Net Atlantic's agents, employees, officers, directors, advisers, and shareholders to assume greater liability, Client is free to negotiate with Net Atlantic for greater liability at an additional cost to Client. 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 result in 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, Client agrees to defend indemnify, and hold harmless Net Atlantic 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 Client listed or sent, or did not send, on or through Net Atlantic'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: In the event of any domain registration challenged by a third party or in the event a domain name dispute arises with a third party, Client agrees to indemnify and hold Net Atlantic harmless pursuant to the terms and conditions set forth in this Agreement. Net Atlantic reserves the right to deny, cancel or transfer any registration that it deems necessary, in its sole 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. Net Atlantic reserves the right to freeze a domain name during resolution of a dispute.
7.7 Claims Against Net Atlantic: If any claim, suit, action, arbitration proceeding or other proceeding is commenced or brought against or involving Net Atlantic or its agents, employees, officers, directors, advisers, and shareholders arising or allegedly arising out of Client's actions including, but not limited to, web site activity and emailing activity or Client's obligations assumed under this Agreement, then Client will defend indemnity, and hold harmless Net Atlantic 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: If Client's breach of any obligation(s) or enforcing the terms of this Section under this Agreement causes Net Atlantic 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 Client shall reimburse Net Atlantic for all such costs, liabilities, judgments, settlement costs, losses, damages, expenses, including attorneys' fees.
8. TERM AND TERMINATION
8.1 Right to Terminate: Net Atlantic reserves the right to terminate the account of any Client who violates any provision of this Agreement including, but not limited to, Net Atlantic's Terms of Service without refund and without prior notice. Client will indemnify, defend, and hold harmless Net Atlantic for any damages or expenses incurred by Net Atlantic as a direct or indirect result of Client's violation of any provision of this Agreement including, but not limited to, Net Atlantic's Terms of Service. Net Atlantic reserves the right to charge a clean-up fee of $50 per spam message complaint received by Net Atlantic arising from Client's mailing list. Client shall pay for all fees and charges incurred prior to termination or cancellation. Either Net Atlantic or the Client can terminate services at any time for any reason or for no reason. In such event, Net Atlantic will not refund Client a pro-rata portion of any amounts remaining after such date. For the security and protection of Client, Client must provide Net Atlantic a written notice of such termination or cancellation by utilizing Net Atlantic's cancellation form. Upon acceptance of the cancellation by Net Atlantic, a confirmation email will be sent to Client acknowledging the cancellation date.
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 (14) days after receipt of written cure notice; (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or 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.
8.3 Effect of Termination: Upon the effective date of the expiration or termination of the Agreement: (i) Net Atlantic will immediately cease providing Services pursuant to this Agreement; and (ii) any and all payment obligations of the Client under this Agreement will become immediately due and payable.
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.
9.1 Marketing: Client may display a banner indicating that Client's web site is being hosted by Net Atlantic and permit users of Client's web site to access Net Atlantic's web site by direct link from the banner, provided the appearance of the banner is approved in advance in writing by Net Atlantic. Net Atlantic may reference Client by trade name and trademark in Net Atlantic's marketing materials and on Net Atlantic's web site. For mailing list Clients, Net Atlantic may include a Net Atlantic footer icon and hyperlink at the bottom of outgoing email from its network. Upon written request of Client, Net Atlantic will remove the footer icon and hyperlink from all outgoing client email.
10.1 Modifying this Agreement: Net Atlantic reserves the right to make modifications to its standard terms and conditions of this Agreement at any time without advance notice by posting the revised Agreement on the Net Atlantic web site.
10.2 Separate Entities: 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 and the Client 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 except if such assignment or transfer is to an entity acquiring all or substantially all of a party's assets by merger or purchase. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
10.4 Force Majeure: Each 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, terrorism, sabotage, acts of war, labor strikes, network outage, 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 thereafter, each party agrees that it will not, directly or indirectly, without the other party's written consent, solicit or attempt to solicit for employment any persons employed by the other party. This provision shall not restrict the right of either party to solicit or recruit in the media or the Internet.
10.6 Severability: In the event any provision of this Agreement is held 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 via courier.
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 supersedes 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 either through a Net Atlantic Account Executive, Business Development Representative or on-line via the Net Atlantic website, or by clicking the "I Accept" button, Client agrees to the terms and conditions of this Agreement and any documents incorporated therein by reference. Any rights not expressly granted herein are reserved by Net Atlantic.