NOCIX, LLC (f/k/a DataShack, LC) Customer Agreement
Welcome to this site operated by NOCIX, LLC, its subsidiaries and affiliates ("NOCIX, LLC", "NOCIX", "we", "our" and "us"). This site offers a wide variety of products and services which may be accessed through the site ("Site"). The term "you" or "your" includes any of your subsidiaries, affiliates, employees, agents, customers, contractors or entities you represent ("end users").
1.1 Your Representations. You represent to us that you are lawfully able to enter into contracts and are at least 18 years of age. If you are entering into this Agreement for an entity, such as a company, you represent to us that you have legal authority to bind that entity. If you are not at least 18 years of age or older or if you are not fully able and competent to enter into the terms, conditions, and representations set forth in this Agreement, please exit the Site.
2. CHANGES TO THE TERMS OR THE SITE. We may change or modify the Terms of this Agreement from time to time without notice other than posting a revised version on the Site or by notifying you by email or on your invoice. The amended terms will become effective upon posting or, if we notify you by email or invoice, as stated in the email or invoice message. Your continued use of the Service Offerings after the effective date of any changes to the Terms of this Agreement shall constitute your consent to the changes and your agreement to be bound by the modified terms. We reserve the right to change, modify or discontinue, temporarily or permanently, the Site, the Terms and the Service Offerings, at any time without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service Offerings, the Terms, or the Site. It is your responsibility to check the Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
3. YOUR ACCOUNT FOR SERVICE & SUPPORT.
3.1 Generally. You may use the Service in accordance with this Agreement. You agree to adhere to all rules and regulations related to your use of the Service, including the Acceptable Use Policy.
3.2 Setting Up Your Account. To access the Services, you must create an account associated with a valid e-mail address and place an order for a Service Offering. You are responsible for all activities that occur on your account, regardless of whether the activities are by you, your employees or a third party (including, but not limited to, a hacker that may be using your server) and we are not responsible for unauthorized access to your account. You agree to contact us immediately if an unauthorized party is using your account or server or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with the Terms of this Agreement. As you place your order for Service Offerings and set up your account, the following requirements apply:
(a) One Account. You may only create one account per customer name and all orders must include your real name, address, and phone number.
(b) False Information. Providing false information may result in immediate termination of all your accounts without refund.
(c) Multiple Accounts. Opening multiple accounts will result in termination without refund.
(d) Credit Card Purchases. If the name on your credit card does not match the company name or the contact person's name associated with your account, we may reject payment without notice. The name on the CC and your company name (or company contact) must match.
3.3 Support. The support we generally provide to you and other users of the Services without charge is as follows:
(a) SUPPORT IS BY OUR TICKET SYSTEM ONLY. This insures that communication can be tracked and documented. Support through our ticket system is generally available 24/7/365. We only support hardware related issues. This is an unmanaged service. As such, we do not manage or back-up your data in any way. You are responsible for backing up your data.
(b) Multiple Tickets. Opening multiple tickets for the same issue within a short period of time constitutes abuse of our support ticket system and may result in termination of services without refund or notice.
(c) Abusive Behavior. Swearing, threats, and other abusive language is not acceptable and may result in account termination without refund.
3.4 Third Party Content. Your use of any Third Party Content or software applications is at your sole risk.
4. SERVICE LEVEL AGREEMENT ("SLA") and SERVICE OFFERINGS.
4.1 Service Offerings. We may change or discontinue any of the Service Offerings or change or remove features of the Service Offerings at any time without notice.
4.2. Service Level Agreement. Our current Service Level Agreement (SLA) is as follows:
(a) ALL SERVICES ARE UNMANAGED. Our 24 hour on site staff will respond to tickets regarding server hardware and service disruption issues only. Clients are required to manage their own data backups and all software aspects of the server including operating system configuration beyond a base OS install. Any OS install erases your data. You are responsible for backing up your data before requesting any OS change.
(b) Server Availability. We strive to and anticipate that our Service will be available to you most of the time.
(c) Service Disruption. A Service disruption occurs when your server is completely offline for more than 15 minutes due to an unplanned fault in our networking or power infrastructure.
(d) Hardware Disruptions. Disruptions caused by the hardware or software of the server itself are not covered by this SLA.
(e) Planned Disruption. Disruptions caused by planned or unplanned maintenance are not covered by this SLA.
(f) Security Disruptions. Disruptions caused as a result of actions taken by our abuse/security department are not covered under this SLA.
(g) Unplanned Disruption. In the event that there is an unplanned Service disruption, you may open a support ticket and request an Account credit to be issued for a prorated amount of your monthly invoice amount equal to the time of the Service disruption. For example: If you pay $60 per month for your server and it is unavailable for 24 hours (during a 30 day month) due to an unplanned service outage, you may request an account credit for $2. You understand that this is your sole remedy for an unplanned service outage.
4.3 Changes to the Service Level Agreement. We may add, change or discontinue our Service Level Agreement from time to time in accordance with the Terms of this Agreement.
5. DATA PRIVACY.
6. YOUR RESPONSIBILITIES.
6.1 Content. You are solely responsible for the development, maintenance, use and backup of Your Content. You must confirm and monitor compliance of your content with the Acceptable Use Policy, the law, the Digital Millennium Copyright Act, and any claims or notices sent to you claiming that your content infringes on any person's rights.
6.2 Security and Backup. You are solely responsible for configuring and using the Service Offerings. You are solely responsible for taking any and all steps to maintain security, protection and backup of your content. You may use encryption technology to protect it. We recommend that you routinely archive your content and data on a daily basis in order to protect it in case of equipment failure or accidental loss caused by equipment, network, human error, or power outage. Your failure to maintain a routine backup schedule to a remote backup location could result in a total loss of your data. You agree that we are not responsible for any loss of your data.
6.3 Violations. Any action that you knowingly or unknowingly permit any person or entity (including, but not limited to, hackers) to take related to this Agreement or your content or use of the Service shall be deemed an act by you. You will ensure that all End Users comply with this Agreement. If you become aware of a violation of this Agreement by an End User, you agree to immediately terminate such End User's access to your content and the Service Offerings.
6.4 Acceptable Use Policy. You may not use, or encourage, promote, facilitate or instruct others to use, the Service Offerings or Site for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. We do not voluntarily participate in any government mass collection of data and we do not ever plan to. Prohibited activities or content include:
(a) Illegal Activities. Any illegal activities, including advertising or making available gambling sites or disseminating or promoting child pornography, are prohibited. You may not use Service Offerings in the commission of any crime that violates the laws of any local, state, and federal government of the United States of America. Violations of this provision may result in us making your information and information about your service and your use of our Service Offerings available to law enforcement with or without your consent or knowledge.
(b) Harmful or Fraudulent Activities. Activities that may be harmful to others or our operations or reputation, including promoting or disseminating fraudulent goods or services or schemes, including ponzi or pyramid schemes, phishing, or pharming, or engaging in deceptive practices.
(c) Infringing Content. You may not upload any material that violates or infringes on the copyright, intellectual property rights or trademark rights of any individual or organization.
(d) Offensive Content. Content that is defamatory, grossly offensive, obscene, abusive, invasive of privacy, or is otherwise objectionable, including content that exploits children or constitutes child pornography, relates to bestiality, expresses bigotry or hatred, constitutes harassment, or depicts non-consensual sex acts. This includes material that defames, abuses, or threatens any person or group. Content including nude art, pornography, sex-related merchandising and links to such sites elsewhere that are permitted by the laws in the city of Kansas City, the state of Missouri and the country of the United States of America comply with acceptable use.
(e) Harmful Content. Content, software or computer technology that may damage, interfere with, intercept, or expropriate any system, program, or data, including viruses, trojan horses, worms, time bombs, or cancelbots are strictly prohibited. Piracy, hacking, cracking, phreaking, warez, pyrotechnics, exploitive software and texts or communications that educate or encourage this activity and/or use are also prohibited.
(f) No Security Violations. You may not use Services Offerings to violate the security or integrity of any network, computer, communications system, software application, network or computing device (each, a "System"). Prohibited activities include: (i) Accessing any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System; (ii) Monitoring data or traffic on a System without permission; (iii) Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin. This prohibition includes the use of aliases or anonymous remailers.
(g) No Network Abuse. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include: (i) Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled; (ii) Denial of Service (DoS) - Inundating a target with communication requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective; (iii) Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques; (iv) Operating network services like open proxies, open mail relays, or open recursive domain name servers; (v) Using manual or electronic means to avoid any use limitations placed on a system, such as access and storage restrictions; (vi) Attack traffic that disrupts any portion of our network (incoming or outgoing) will be blocked until the customer is able to work with security personnel to resolve the issue; (vii) IRC websites and IRC servers are prohibited; (viii) You may not upload ROMs and Emulators; (ix) You must contact us prior to installing a CDN within our infrastructure. "Shared Resource" CDN's are strictly prohibited.
(h) No E-Mail or Other Message Abuse. You will not distribute, publish, send, or facilitate the sending of unsolicited mass/bulk e-mail (UCE) or other messages, promotions, advertising, or solicitations (like "spam"), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender's identity without the sender's explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider. You will not reference Us in any unsolicited email that you send.
6.5 Our Monitoring and Enforcement of Acceptable Use. We reserve the right, but do not assume the obligation, to investigate any violation of the Acceptable Use Policy or misuse of the Services Offerings or Site. We may:
(a) General Options. Investigate violations or misuse of the Service Offerings or Site; or terminate Service without warning, notice or refund; or remove, disable access to, or modify any content or resource; or restrict any account to Paypal only payments; or examine the contents of any account at any time that violates the Acceptable Use Policy or any other agreement we have with you for use of the Services or the Site. You understand and agree that if we terminate your Service for Acceptable Use Violations, the result will be a total loss of your data. You are solely responsible for backing up your data.
(b) Report. Report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of the Acceptable Use Policy.
(c) Your Responsibility Related to Abuse Complaints. In addition to your responsibilities in Sections 8 and 9 and elsewhere in Agreement, you understand that you are solely responsible for maintaining and regularly checking your email address (associated with your account) as well as your online account where we may send you abuse complaints related to your account. You are responsible for immediately responding to communications received from us related to Abuse Complaints. If you fail to reply to any abuse complaint, your service will be suspended and terminated. You understand and agree that service termination results in a total loss of your data. As such, you must back-up your data in order to protect it.
6.6 Reporting of Violations of the Acceptable Use Policy. If you become aware of any violation of the Acceptable Use Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this Policy, please use our ticketing system.
7. FEES, ORDERS, BILLING & PAYMENT
7.1. Service Fees.
(a) Monthly Services. All Services are prepaid at the time of order. We bill you monthly thereafter. We may invoice you more frequently if we believe that your account may be fraudulent or at risk of non-payment. You will pay us using one of the payment methods we support. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding. Fees for any new Service will be effective when we post updated fees on the Site unless we stated otherwise in a notice.
(b) Hourly Services. All Services are prepaid at the time of order. A minimum deposit is required and is outlined in our service description or your order form or account. As you use the hourly service your account balance will go down. Once your account balance reaches (i) the minimum default amount outlined in your service order or customer account or (ii) a minimum threshold you set in your account, a fee will be automatically billed and paid using your payment source. The billing amount will be (i) a minimum amount outlined in your order form or customer account or (ii) an amount set by you in your account. Your Service is deployed with a maximum GB per hour bandwidth as outlined in either the Service description or the service order or your customer account. If you exceed the maximum GB per hour usage, bandwidth overages are charged at $0.02 per GB and will be deducted from your balance. You will pay us using one of the payment methods we support. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding. Fees for any new Service will be effective when we post updated fees on the Site unless we stated otherwise in a notice.
(c) Changing from Hourly Service to Monthly Service or another Hourly Service. If you transfer from your Hourly Service to Monthly Service, any balance on your Hourly Service account will be credited/applied to your new Monthly Service invoice. If you change to another Hourly Service, you must first cancel your existing Hourly Service and our systems automatically apply the credit to your new Hourly Service.
(d) General. We may increase fees for any existing Service Offerings at any time. We may charge you a late fee on all late payments and a reconnect fee on all terminated accounts and a chargeback fee for any unauthorized/unapproved chargebacks and an abuse complaint fee of $1000 per incident related to any complaint that your server is being used in violation of Acceptable Use Policy. Abuse complaint fees help to: (i) cover part of our costs of monitoring for and protecting against abuse; (ii) cover part of the damage to our reputation when abuse occurs; (iii) reduce the damages we incur if your abuse contributes to us being black listed; and (iv) deter abuse on our network and systems.
(e) Bandwidth. (i) Monthly Service. Your monthly bandwidth allotment is calculated based off your upstream plus downstream traffic. Bandwidth overages will be charged $.02 per GB. (ii) Hourly Service. Your Service is deployed with a maximum GB per hour bandwidth as outlined in either the Service description or the service order or your customer account. If you exceed the maximum GB per hour usage, bandwidth overages are charged at $0.02 per GB and will be deducted from your balance.
7.2 Taxes. All fees and charges payable by you are inclusive of applicable taxes and duties, including VAT and applicable sales tax. As such, you pay no tax.
7.3 Set Up Fees. There are no set up fees related to our Service Offerings.
7.4 Ordering. The order process for Service Offerings is as follows:
(a) Correct Information. All orders must include your real name, address, phone number and email address. Providing false information may result in immediate termination of all your accounts without refund. Clients are limited to one account. Opening multiple accounts will result in termination without refund.
(b) Priority. Orders are deployed in the order in which they are received.
(c) Payment. Payment is required at the time the order is placed. Failure to complete payment will result in the order being discarded by our system.
Monthly Service. After your initial order and your service is active ("Service Activation Date"), your monthly invoice date is every 29 to 31 days thereafter. Your monthly invoice renewal date is automatically adjusted to the approximate day of the month that your server is put online. It is your responsibility to check the monthly renewal date on your invoice to confirm when it is due.
Hourly Service. All Services are prepaid. There is no monthly invoice. As you use the hourly service your account balance will go down. Once your account balance reaches (i) the minimum default amount outlined in your service order or customer account or (ii) the minimum threshold you set in your account, a billing notification is sent to your account email address or your account and a payment for the balance is made using your payment source. The billing amount will be (i) a minimum amount outlined in your order form or customer account or (ii) an amount set by you in your account. You will pay us using one of the payment methods we support. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding.
If you set your replenish source to "Auto Replenish Disabled" in your account settings and your account balance reaches $0.00 or if you cancel your service manually through your account, then your account will be cancelled without any notice or invoice. WHEN SERVICE IS CANCELLED, THE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You agree that you are solely responsible for managing and backing up your data to avoid complete data loss.
(e) Matching Names. If the name on your credit card does not match the company name or the contact person's name associated with your account, we may refuse payment. Our credit card verification process requires you to provide photo identification or passport information as well as copies of your credit card. This process applies to existing customers who desire to change the credit card associated with their account or desire to switch from PayPal payments to credit card payments. Failure to comply with the credit card verification process will result in our refusal of payment and termination of service.
7.5 Billing. The billing process related to your Service is as follows:
(a) No Refunds. Due to the nature of our industry and the costs involved with provisioning and maintaining your Service, we do not offer refunds or pro-rated refunds.
(b) Invoices. (i) Monthly Services. Invoices are generated 10 days before the date they are due. At our sole discretion, email reminders may be sent at 7 days, 4 days and 1 day before the due date to your last known email address. If your Account is set up on auto billing, your payment method will be charged two (2) days prior to the Due Date. (ii) Hourly Services. Refer to 7.4(d).
(c) Email Invoices. All invoices or amounts due are emailed and are available in your Account panel. Invoices are not sent via postal mail, PDF, fax or any other method other than email. We do not contact customers via phone to discuss billing issues. If you do not receive your invoice via email, you are responsible for checking your account panel to determine the invoice amount you owe.
(d) Declined Payment. (i) Monthly Services. If your payment is declined or you fail to submit payment on or before the invoice due date, your Service will be disconnected/suspended at 11:59 p.m. (CST) the day it is due and your account will be assessed a $5 late fee. (ii) Hourly Services. If your payment source is declined, you must login and submit a new source of payment. If you fail to submit a new source of payment, your account will be immediately cancelled without notice if your account balance reaches $0.00. WHEN SERVICE IS CANCELLED, THE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You agree that you are solely responsible for managing and backing up your data to avoid complete data loss.
(e) Billing Dispute. A billing dispute of any kind does not exempt you from paying current and future bills. Billing disputes resolved in the customer's favor will receive account credit for overpayment.
(f) ChargeBack Fees. We must approve any chargeback on your credit card or PayPal account. If any chargebacks occur on your credit card or PayPal account we reserve the right to charge a $25 chargeback fee and terminate all Service and recycle your server(s) without notice.
(g) Payment Failure. (i) Monthly Service. Failure to make payment within 24 hours of the time we disconnect/suspend your Service will result in your Service being terminated and a termination fee of $10 will be assessed against your Account. (ii) Hourly Services. If your payment source fails, you must login and submit a new source of payment. If you fail to submit a new source of payment, your account will be immediately cancelled without notice if your account balance reaches $0.00. WHEN SERVICE IS CANCELLED, THE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You agree that you are solely responsible for managing and backing up your data to avoid complete data loss.
(h) Termination Consequence. SERVICE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You agree that you are solely responsible for managing and backing up your data to avoid complete data loss.
(i) Resellers. Resellers are responsible for all invoices and payments related to their account. Reseller customer payments through a reseller PayPal account are not allowed and are a violation of this Agreement. If a reseller allows its customer to make a payment using the reseller's PayPal account, the reseller is responsible for any and all chargeback fees related to that payment. If the fees are not paid, we may terminate all Service and recycle your server(s) without notice.
8. SERVICE SUSPENSION
8.1 We will suspend your right to access or use any portion or all of your Service and disconnect your server immediately if we determine:
(a) Security or Fraud Risk. Your use of the Service Offerings poses a security risk, or may adversely impact the Service Offerings or our systems or Content, or may subject us to liability, or may be fraudulent or you are in breach of this Agreement (including if you are delinquent on your payment obligations). If your payment is declined or you fail to submit payment on or before the invoice due date, your Service will be suspended/disconnected at 11:59 p.m. (CST) the day it is due and your account will be assessed a $5 late fee; or
(b) Ceased Business. You have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or become the subject of any bankruptcy, reorganization, liquidation, or dissolution.
8.2 Suspension Impact. If we suspend your right to access or use any portion or all of the Service Offerings:
(a) Fees Incurred. You remain responsible for all fees incurred through the end of the billing cycle in which the suspension occurred. There is no refund related to prepaid services; and
(b) Fees Continuing. You remain responsible for any applicable fees for any Service Offerings you continue to have access to, and for fees related to in-process tasks; and
(c) Our Right to Suspend. Our right to suspend your access or use of the Service Offerings is in addition to our right to terminate this Agreement.
9. SERVICE TERM & TERMINATION
9.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us.
(a) General. You may terminate this Agreement for any reason by logging into your web portal and cancelling all of your Service Offerings. Hourly Service may be terminated by: (i) changing your account setting for replenish source to "Auto Replenish Disabled" so that your account balance reaches $0.00; or (ii) manually cancelling your Service in your account. We may terminate this Agreement at any time for any reason.
(b) Monthly Customers - For Cause Termination. Either party may terminate this Agreement for cause if there is a breach of this Agreement by the other party. We may terminate this Agreement immediately if any act or omission by you results in a suspension. For monthly customers, your failure to make payment within 24 hours of the time we disconnect/suspend your Service will result in your Service being terminated and a termination fee of $10 will be assessed against your Account. SERVICE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. We may also terminate if our relationship with a provider of software or technology we use to provide the Service Offerings expires or changes; or if we believe providing the Services could create a financial or technical burden or a security risk for us; or in order to comply with the law or requests of governmental entities; or if we determine any Service Offering has become impractical for any reason.
(c) Hourly Customers - For Cause Termination. Either party may terminate this Agreement for cause if there is a breach of this Agreement by the other party. We may terminate this Agreement immediately if any act or omission by you results in a suspension. If your payment source fails and your account balance becomes $0.00 or if you cancel your Service manually, your account will be immediately cancelled. WHEN SERVICE IS CANCELLED, THE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You agree that you are solely responsible for managing and backing up your data to avoid complete data loss.
(d) General � For Cause Termination. We may also terminate if our relationship with a provider of software or technology we use to provide the Service Offerings expires or changes; or if we believe providing the Services could create a financial or technical burden or a security risk for us; or in order to comply with the law or requests of governmental entities; or if we determine any Service Offering has become impractical for any reason.
9.3. Termination Impact.
(a) Rights Terminate. Upon termination of this Agreement all your rights immediately terminate and you remain responsible for all fees incurred through the end of the billing cycle in which the termination occurred, including fees for in-process tasks and prepaid services. SERVICE TERMINATION IMMEDIATELY ERASES YOUR DATA AND YOUR DATA IS NOT RECOVERABLE. You are responsible for backing up your data. We recommend that you back it up daily.
(b) Post-Termination Assistance. Any post-termination assistance from us is in our sole discretion and subject to our agreement in writing from a manager. Communications from our customer service representatives through the ticketing system do not constitute our agreement to any post termination assistance. Termination erases all of Your Content and as such we are unable to assist in retrieving any lost data; and you will be unable to retrieve Your Content from the Services.
10. LICENSE RIGHTS AND RESTRICTIONS AND YOUR WARRANTIES
10.1 Adequate Rights. You represent and warrant to us that you have all rights necessary to enter into this Agreement; and none of Your Content or use of it or our Service will violate the Acceptable Use Policy.
10.2 Service Offerings License. As between you and us, we own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement.
10.3 License Restrictions. You may not use Service Offerings for any purpose other than as permitted by this Agreement. You may not attempt to modify or tamper with software included in the Service Offerings or use the Service Offerings in a way intended to avoid fees or increase usage limits. All licenses immediately terminate if you do not comply with this Agreement.
11.1. General. You will defend, indemnify, protect and hold harmless us and our employees, officers, directors, members or shareholders, lenders, principals, managers and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees regardless of whether any action is ever commenced) arising out of or relating to any third party claim, suit, action or proceeding brought against us concerning: (a) your use of the Service Offerings (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law, rule or regulation by you; (c) your content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the use or marketing of Your Content; (d) a dispute between you and any End User; (e) any negligent or willful act or omission by you; (f) any damages arising out of the Service Offerings or failure of Service Offerings; or (g) the destruction or loss or damage of your data. If we are obligated to respond to a third party subpoena, order or process described above, you agree to reimburse us for reasonable attorneys' fees, as well as all employees' and contractors' time and expense spent responding to the subpoena, order or process at our then-current hourly rates. These obligations survive termination of your relationship with NOCIX or your use of our Service or Site. NOCIX reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with NOCIX in asserting any available defenses.
11.2. Process. We will notify you of any claim subject to Section 11.1, but our failure to immediately notify you will only affect your obligations under Section 11.1 to the extent that our failure prejudices your ability to defend the claim. You may use counsel of your own choosing (subject to our written consent) to defend against a claim or to settle a claim, provided that you obtain our prior written consent. You agree that we may assume control of the defense and settlement process at any time.
12. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL NOCIX, ITS EMPLOYEES, OFFICERS, OWNERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE OUR SERVICE OR SITE OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THE INABILITY TO USE AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, AIR CONDITIONING OUTAGES, SYSTEM FAILURES, HUMAN ERROR, OR OTHER INTERRUPTIONS, OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AVAILABLE THROUGH THE SITE OR THE SITE, THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, OR PRODUCTS, (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SITE; (iv) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE OFFERINGS (v) UNAUTHORIZED ACCESS TO OR ALTERATION OF OR LOSS OF YOUR TRANSMISSIONS OR DATA; (vi) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SITE; (vii) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; (viii) ANY ERROR, OMISSION, DEFECT, VIRUS OR THEFT THAT CAUSES DAMAGE OR LOSS OF YOUR CONTENT OR DATA OR (ix) ANY OTHER MATTER RELATING TO OUR SERVICE OR SITE, EVEN IF NOCIX OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE IS TO STOP USING THE SITE AND/OR OUR SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF NOCIX UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). IF YOU DO NOT AGREE, YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE IS TO STOP USING THE SITE AND/OR THOSE SERVICES.
You authorize us to file a copy of this Section 12 in any proceeding as conclusive evidence that you consented to limitations of liability.
OUR SERVICE OFFERINGS ARE PROVIDED "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT & TITLE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE.
You authorize us to file a copy of this Section 13 in any proceeding as conclusive evidence that you consented to limitations of warranties.
14.1 Confidentiality. You may use NOCIX Confidential information only in connection with your use of the Service Offerings and will not disclose it during the Term or at any time during the 2 year period following your termination of Service. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of NOCIX Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.
14.2 Force Majeure. We will not be liable for any failure or delay to perform any obligation under this Agreement where the failure or delay results from any cause beyond our reasonable control, including without limitation, acts of God, explosion, flood, fire or other casualty, vandalism, cable cut, failure of commercial power, adverse weather conditions or other elements of nature, labor disputes or shortages or other industrial disturbances, inability to procure materials or transportation facilities, failure of any third party (including any other supplier) to provide services or facilities or equipment required for such performance or obligation, systemic electrical, telecommunications, or other utility failures, earthquake, blockages, embargoes, riots, governmental action or inaction or orders (such acts including without limitation any regulatory or administrative decision making performance or obligation economically or technically unfeasible), condemnation or the exercise of rights of eminent domain, acts of terrorism, national emergency, or war. Invocation of this clause shall not relieve you of your obligation to pay for any Services actually provided.
14.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party is an agent of the other for any purpose or has the authority to bind the other.
14.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
14.5 Waiver of Trial by Jury. We and you agree, to the fullest extent that we may lawfully do so, to waive trial by jury in any action or proceeding brought by any party to this Agreement with respect to this Agreement, or any matter related to this Agreement. This waiver of right to trial by jury is given knowingly and voluntarily by you, and is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue. We or you, as applicable, are hereby authorized to file a copy of this Section 14.4 in any proceeding as conclusive evidence of this waiver by you and us, as applicable.
14.6 Import and Export Compliance. You agree comply with all applicable import and export regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and any sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance related to the manner in which you choose to use the Service Offerings.
(a) To You. We may provide any notice to you by: (i) posting a notice on the Site; (ii) posting a notice on your invoice or (iii) sending a message to the email address then associated with your account. Notices we provide by posting on the Site will be effective upon posting and notices we provide by email or invoice will be effective when we send the email or invoice. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact NOCIX as follows: by certified mail to NOCIX, LLC., 201 E. 16th, North Kansas City, MO 64116. Notices provided by certified mail will be effective three business days after they are received.
(c) Copyright Infringement Notice. The Digital Millennium Copyright Act ("DMCA") provides safe harbors from copyright infringement liability for online service providers. We maintain safe harbor status as we have a designated agent to receive notifications of claimed copyright infringement. Send any copyright infringement "takedown notice" to: Aaron Wendel, 324 East 11th Street, Kansas City, MO 64106. Our phone and fax numbers for copyright issues are 816-256-3030 and 816-841-4702, respectively. The email address is: [email protected]. Aaron Wendel may also be reached by mail at: 201 E. 16th Street, North Kansas City, MO 64116. Please review the U.S. Copyright Office requirements to file "takedown notices."
(d) Language. All communications and notices must be in the English language.
14.8 Assignment. You will not assign this Agreement or any of your rights under this Agreement, without our prior written consent. Any assignment or transfer without our prior written consent will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
14.9 No Waivers. No failure by us to exercise any power, right, privilege or remedy under this Agreement, and no delay in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. All waivers by us must be in writing to be effective. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
14.10 Severability. If any term or provision of this Agreement is held to be invalid, illegal or incapable of being enforced by virtue of any federal or state law, or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any such term or provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
14.11 Governing Law; Venue; Attorney's Fees. This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Missouri, without regard to choice of law principles. Any dispute arising from this Agreement shall be governed by the laws of the State of Missouri, and shall be decided solely and exclusively by State courts located in Clay County, Missouri or Federal Court within the County of Jackson. Any Party who unsuccessfully challenges the enforceability of this forum selection clause shall reimburse the prevailing party for its attorney's fees, and the party prevailing in any such dispute shall be awarded its attorneys' fees. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. You authorize us to file a copy of this Section 14.11 in any proceeding as conclusive evidence that you consented to venue.
14.12 Entire Agreement. This Agreement, without limitation, constitutes the complete and exclusive agreement between you and us with respect to the subject matter of this Agreement and supersedes and replaces any and all prior or contemporaneous representations, understandings, agreements, negotiations or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement). If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.
14.13 Survival. Any obligations under the Agreement which by their express terms are to survive, shall survive the expiration or termination of this Agreement. In addition, any other obligations under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.
Effective Date: 3-16-17