The TOS governs your purchase and use, in any manner, of all Services, ordered by you and accepted by Nexcess and describes the terms and conditions that apply to such purchase and use of the Services. Under the terms of this MSA, your placement of information on our servers is an acknowledgement that you have read, understand, and agree to abide by the terms and conditions set forth below.
As used in the MSA, capitalized terms shall have the meaning ascribed to them, or as indicated below:
- 1.1. “Company Network”
- The telecommunications network and network components owned, operated, used, or controlled by Company, including, but not limited to, Company's fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by Company to provide the Services. Where Company services a building through its own facilities, the Company Network includes those facilities. The Company Network does not include customer premises equipment, customer-ordered telephone circuits, and any networks or network equipment not operated and controlled by Company.
- 1.2. "Controller"
- as defined in the GDPR.
- 1.3. “Customer End User”
- A third party which is an end user of services provided by Customer.
- 1.4. Customer Portal
- portal located at https://portal.Nexcess.net.
- 1.5. “GDPR”
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
- 1.6. “Losses”
- Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.
- 1.7. “Personal Data”
- as defined in the GDPR.
- 1.8. “Processor"
- as defined in the GDPR.
- 1.9. “Party” or “Parties”
- Nexcess and/or Customer.
- 1.10. “Shared Service(s)”
- Only those services offered by Company for sale to the general public where the virtual or dedicated server computer is used by more than one (1) client of Company at any given time.
- 1.11. “Service Date”
- The earlier of date on which (a) Company deems that the Service is or will be available for Customer’s use; or (b) Customer first uses the Service or the Company Network.
- 1.12. “Personal Data”
- as defined in the GDPR.
- 1.13. “Tax” or “Taxes”
- All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on Company or for which Company is permitted to invoice Customer in connection with Company’s performance under this Agreement. Taxes do not include Company’s income taxes.
- 1.14. “Term”
- The one (1) month period commencing on the Service Date, which is extended automatically for successive one (1) month periods unless Company provides Customer with written notice at least thirty (30) days prior to end of the Term or Customer submits a cancellation request in the manner specified by Section 5.2 of this MSA.
- 1.15. “Work Order Form”
- The Form or Forms entered into the Parties by separate agreement, identifying the specific Service(s) to be delivered.
2. SERVICES AND TERMS
- The Company will provide the Services to Customer for the service charges specified in the Work Order Form which will be subject to the terms and conditions of the MSA.
- Customer will be deemed to have accepted the Service as of the Service Date.
- If agreed upon by Company, the Customer may order additional Services through additional Work Order Forms, which will be subject to the terms and conditions of the MSA. Customer’s account must be current in order to make changes to Services or order additional Services.
3. SERVICE FEES AND BILLING
- 3.1. Service Fees.
- Fees for Services ordered by the Customer shall begin on the initial order and that date shall serve as the anniversary date (“Anniversary Billing Date”) for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Invoices are sent monthly in advance. Fees are due in advance of monthly service cycle without counterclaim, set-off or deductionand will be billed on the Anniversary Billing Date of each month. A late charge shall be added to Customer’s past due balance of the lesser of 1.5% per month or the maximum legal rate.
- 3.2. Domain Registration
- Nexcess complies with the ICANN Expired Registration Recovery Policy. Domain Name registration and renewal rates are identical and can be located on the Nexcess website. In the event your domain has expired and is in the redemption period, Nexcess charges a $120.00 fee in addition to the annual domain registration fee to redeem the domain name.
- 3.3. Upgrade/Additional Service Fees.
- New services or upgrades/relocations may result in additional fees/charges. Upgrades ordered will result in generation of a pro-rated invoice to the next Anniversary Billing Date and billed as a one-time pro-rata charge. Additional services will be billed for the full month service and will continue each month on the Anniversary Billing Date. If a prior Service location remains installed after a new Service location is installed, Customer will be responsible for service charges for both Service locations until terminated as provided for each Service.
- 3.4. One Time Fees.
- One-time fees, such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Nexcess’ approval. One-time fees, such as bandwidth overages and Nexcess Cloud auto-scaling, are due and payable upon an invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Nexcess’ approval. Company may change the specifications, provisions, and/or charges for the Service for the Term by providing Customer at least sixty (60) days advance notice. Customer agrees that its obligation to pay the service charges and Taxes shall survive the termination of the Services. Service fees do not include applicable Taxes unless so indicated. Customer is responsible for paying all foreign, federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to any services, other than those taxes based on Nexcess’ net income. Customers claiming a tax exemption must provide Company with a properly executed exemption form.
- 3.5. Service Credits
- SLA Credits (as defined in the SLA) will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer, have no cash value and the service credits shall not be transferable to other account holders. SLA credits shall expire if Customer’s account is fully terminated.
- 3.6. Refunds
- Nexcess offers a thirty (30) day money back guarantee on new orders for all Shared Services. All other services, including, but not limited to: setup fees, secure socket layer (SSL) certificates, dedicated servers, clustered services and domain registration services are non-refundable at any time. In order to request a refund, Customer must submit a termination notice as described in this TOS above within thirty (30) days of your first invoice date and Customer must open a ticket with the billing department requesting a refund.
- 3.7. Disputes
- Customers seeking to resolve billing errors are instructed to open a billing ticket inside the Customer Portal. Customer agrees not to chargeback or dispute any credit card or PayPal payments for services rendered rather than resolving a dispute with the Company. If you contact your credit card issuer and initiate a “chargeback” or contact PayPal and dispute charges for services rendered by Company, Customer may be charged a one hundred fifty-dollar ($150) fee for investigation and processing. This compensates the Company for the investigation that PayPal/Customer’s card issuer requires the Company to conduct in order to demonstrate the Company right to payment. Any dispute or chargeback filed by Customer that is not successful may result in immediate service termination at the Company’s sole discretion. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Nexcess in enforcing collection of any investigation and processing fee.
- 3.8. Non-Payment
- All payments are due in full on the Anniversary Billing Date. Failure to remit payment for services on the Anniversary Billing Date is a violation of the TOS. Failure to remit payment on the Anniversary Billing Date may result in a suspension of the Services. Failure to remit payment for Services within thirty (“30”) consecutive days, including the Anniversary Billing Date, shall result in termination of access to the Services and all Services may be reclaimed at the Company’s sole discretion. A twenty-five dollar (“$25.00”) reconnect fee will be incurred for failure to remit payment for Services after access has been disconnected. All Customer data remaining after thirty (“30”) days of non-payment will be destroyed for security and privacy reasons, unless otherwise required by law. Any Customer owned equipment (colocation) shall become the property of Nexcess in the event of non-payment.
- Company may change the specifications, provisions, charges for the Service for the Term by providing Customer at least sixty (60) days advance notice. Customer agrees that its obligation to pay the Service charges and Taxes shall survive the termination of the Services.
- Service fees do not include applicable Taxes unless so indicated. Customer is responsible for paying all foreign, federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to any services, other than those taxes based on Nexcess’s net income. Customers claiming a tax exemption must provide Company with a properly executed exemption form.
4. SERVICE USE
- Customer’s use of Services is subject to the AUP which is incorporated into the MSA. Customer’s use of the Services may only be for lawful purposes, and Customer shall at all times comply with applicable laws. Transmission of any material in violation of any law or regulation is strictly prohibited. Access to other networks connected to Company’s Network must comply with such other networks’ rules. Further, by accepting the MSA, Customer agrees to use Nexcess’s services solely for their intended purposes. CUSTOMER SPECIFICALLY AGREES NOT TO TAMPER WITH, MAKE DERIVATIVE WORKS OF, REVERSE COMPILE, REVERSE ENGINEER AND/OR DISASSEMBLE ANY OF NEXCESS’S SOFTWARE OR FILES. If Customer violates or exceeds the permitted use, Nexcess reserves the right to immediately terminate Customer’s account and will pursue any and all legal remedies available.
- In addition to the limitations set forth in Section 4.1 above, Customer shall not engage in any of the following activities or practices (collectively, the Use Policies): (a) posting, transmission, re-transmission, or storing materials on or through any of Company’s products or services, if in the sole judgment of Company such posting, transmission, re-transmission or storage is (i) in violation of any local, state, federal, or non United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations), (ii) threatening or abusive; (iii) obscene; (iv) indecent; or (v) defamatory; (b) installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer; (c) resale of Company’s products and services without the express prior written consent of Company; (d) deceptive marketing practices; (e) actions that restrict or inhibit anyone – whether a customer of Company or otherwise – in his or her use or enjoyment of Company’s products and services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of Internet services; (f) introduction of malicious programs into the Company Network or servers or other products and services of Company (e.g., viruses, Trojan horses and worms); (g) causing or attempting to cause security breaches or disruptions of Internet communications (such as, for example, accessing data of which the customer is not an intended recipient, or logging into a server or account that the Customer is not expressly authorized to access, port scans, flood pings, packet spoofing, and forged routing information); (h) executing any form of network monitoring that will intercept data not intended for the Customer; (i) circumventing user authentication or security of any host, network or account; (j) interfering with or denying service to any user other than the Customer’s host (e.g., denial of service attack); (k) using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session; (l) failing to comply with Company’s procedures relating to the activities of customers on Company-owned facilities; (m) furnishing false or incorrect data on the Order Form, including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document “use” of Company’s products or services; (n) sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of the Customer or with whom the Customer does not have an existing business relationship (e.g., E-mail “spam”); or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or SPAM; (o) harassment, whether through language, frequency, or size of messages; (p) unauthorized use or forging of mail header information; (q) solicitations of mail or any other E-mail address other than that of the poster’s account or service, with the intent to harass or collect replies; (r) creating or forwarding “chain letters” or other “pyramid schemes” of any type; (s) use of unsolicited E-mail originating from within the Company Network or networks of other Internet service providers on behalf of or to advertise any service hosted by Company or connected via the Company Network; and (t) exporting, reexporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions. No failure or delay in exercising or enforcing these Use Policies shall constitute a waiver of the Use Policies or of any other right or remedy. If any provision of the Use Policies is deemed unenforceable due to law or change in law, such a provision shall be disregarded and the balance of the Use Policies shall remain in effect. The Use Policies may be modified by Company at any time without notice to Customer.
- Customer’s failure to comply with the terms of this MSA (including but not limited to the AUP) may result in the automatic suspension of the Services without notice. In the event Company terminates the Services, all amounts owed to Company for the Services for the entire Term are immediately due and payable by Customer to Company, without further notice or demand. In addition to amounts owed by Customer to Company for the Services, Customer shall also pay Company for any costs, or other damages incurred by Company as a result of Customer’s violation of the MSA (including but not limited to the AUP).
- Company also may restrict, suspend or terminate the Services at any time without liability if Customer is in breach of this MSA (including but not limited to the AUP) and, in Company’s sole judgment, an immediate restriction or suspension is necessary to protect the Company’s ability to provide services to other customers.
- Except as provided herein, either Party may terminate the contractual relationship if the Other Party breaches any material term or condition of this MSA and fails to cure such breach within ten (10) days after receipt of written notice of the same.
- The Company’s failure to exercise any right or remedy provided for in the MSA does not constitute a waiver of such right or remedy, each of which is expressly preserved.
5. TERM AND TERMINATION
- This Agreement shall be for the term selected during the online process or listed on the Statement of Work commencing on the Service Date, which is extended automatically for the same service period unless either party provides written notice at least thirty (30) days prior to end of the Term. Section 5.2 provides guidance on how to submit a cancellation notice. For example, if you select "monthly" on the online order form, your service will be for one month and shall automatically renew for one month intervals if you do not submit a cancellation notice.
- Customer may submit a cancellation request using the Customer Portal and selecting the “Request Cancellation” option next to the service you are canceling. The Customer Portal is located at https://portal.nexcess.net. Detailed instructions on how to submit cancellation is located at: https://help.nexcess.net/client-portal/how-to-cancel-a-nexcess-service. Nexcess does not permit cancellation via any other method, including, but not limited to: tickets, e-mails, telephone, facsimile or postal mail. Any notice of termination will be effective on the following billing due date for the Service being terminated or thirty (30) days after the cancellation notice is submitted, whichever is longer.
- Prior to the Service Date, Company may terminate the Services without liability for any reason.
- Nexcess agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, Customer Portal information, and other situations involving Customer data. Customer assumes ultimate responsibility for data integrity, retention, security, backup, and ownership.
- If Customer is caught by the scope of the GDPR, Sections 6.3 and 6.4 of the MSA apply to Customer.
- During Customer’s use of the Services, Customer may transfer Personal Data to Company to process on Customer’s behalf. Where such transfer occurs:
6.3.1 the Parties agree that Company will be a Processor and Customer will be a Controller; and
6.3.2 the data processing terms and conditions set out in Schedule 1 will apply.
- During the Term, Customer may transfer Personal Data to Company to process for Company’s own purposes (as set out in the PP). Where such transfer occurs, Customer warrants that:
6.4.1 it has transferred such Personal Data lawfully and in accordance with the GDPR and any other data protection laws or regulations relevant to Customer; and
6.4.2 Company is permitted to process such Personal Data lawfully for the purposes set out in the PP.
- California Consumer Privacy Act.
If, as necessary to perform its obligations under the Agreement, Nexcess possesses or otherwise stores “personal information” (as that term is defined by the California Consumer Privacy Act of 2019 (“CCPA”)) made available by Customer, Nexcess certifies that it understands the restrictions set forth in Section 1798.140(w)(2)(A) of the CCPA, and that it will comply with the same. Nexcess will not sell any personal information provided or otherwise made available by Customer, nor will Nexcess retain, use, or disclose any such personal information for any purpose, including for a commercial purpose, other than the specific purpose of providing the Services specified in the Agreement or as otherwise permitted by applicable law. Unless prohibited by applicable law, Nexcess shall, as soon as reasonably practicable, forward to Customer all requests received from individuals wishing to exercise their rights under the CCPA. Nexcess’s only response to individual requests shall be to inform the individual that such request has been passed along to the appropriate party, unless otherwise required by the CCPA. If requested by Customer, Nexcess shall reasonably assist Customer, at Customer’s expense, in complying with Customer’s obligations under the CCPA.
7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
- EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER COMPANY NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS MSA OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES. WITHOUT PREJUDICE TO OR LIMITING OF COMPANY’S RIGHT TO RECEIVE PAYMENT FOR SERVICES, COMPANY’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND COMPANY, AND THE PROVISION BY COMPANY OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) FIFTY THOUSAND DOLLARS ($50,000.00) IN TOTAL.
- CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO COMPANY’S CONTROL. CUSTOMER AGREES THAT COMPANY SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO COMPANY’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. COMPANY SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). COMPANY IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM COMPANY MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, COMPANY IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD COMPANY RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE COMPANY NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COMPANY, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
- NEITHER COMPANY NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
- NO ACTION OR PROCEEDING AGAINST COMPANY MAY BE COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
- Customer will indemnify, defend and hold harmless Company and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance or breach by Customer with respect to its obligations under this Agreement; (b) from any and all claims by any of Customer’s customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that Customer will have no obligation to indemnify and defend Company against claims for damages for bodily injury or death caused by Company’s gross negligence; or (c) from claims of copyright, patent, trademark or service mark infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement or violation of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer’s customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer’s customers or authorized end users, or (iii) the use of Services by Customer in any manner inconsistent with the terms of this Agreement, including without limitation the Use Policies.
9. Changes to the MSA.
- As noted above, Nexcess may modify the terms and conditions of this MSA as provided below. Nexcess will notify its Customers through e-mail of any such modifications and all modifications shall be effective upon the next invoice due date. If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by Nexcess.
10. Force Majeure.
- Neither party shall be deemed in default hereunder, nor shall either party be responsible for any cessation, interruption, or delay in the performance of its obligations under the MSA where such failure of performance is the result of any force majeure event, including, but not limited to, earthquake, flood, fire, storm, natural disaster, act of God, civil disturbances, war, terrorism, armed conflict, riots, failure of contractors or subcontractors to perform, labor strike, lockout, boycott, or acts of governmental authorities.
- Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without Nexcess’s prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. Nexcess may assign the MSA to any entity as a result of a merger or sale of all or substantially all of the assets of Nexcess to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer’s and Nexcess’s respective permitted successors and permitted assigns. However, Nexcess may use third parties to provide all or part of the Services.
- CUSTOMER AGREES TO ABIDE BY ALL LOCAL, STATE, AND FEDERAL LAWS PURSUANT TO SERVICES DELIVERED IN SOUTHFIELD, MICHIGAN, UNITED STATES OF AMERICA. THIS AGREEMENT IS MADE UNDER AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EXCLUSIVE VENUE AND JURISDICTION FOR ANY AND ALL LEGAL REMEDIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE OAKLAND COUNTY, SOUTHFIELD, MICHIGAN. EACH PARTY IRREVOCABLY CONSENTS TO THE FOREGOING JURISDICTION AND VENUE REQUIREMENTS AND WAIVES ANY AND ALL OBJECTIONS TO SUCH REQUIREMENTS.
- Any controversy or claim arising from service or related to this MSA or breach therein in excess of five hundred dollars ("$500") shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The venue and jurisdiction requirements set forth above apply to any arbitration proceedings. The resulting judgment rendered by a licensed arbitrator may be entered in any court with valid jurisdiction.
14. Legal Compliance.
- By accepting this MSA, Customer represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Customer further represents and warrants that he/she has full authority and power to enter agree to the terms of the MSA on behalf of the company he/she represents, if any. Additionally, Customer warrants that he/she is at least eighteen (“18”) years of age or older and are not otherwise legally incapacitated to agree to the terms of the MSA.
15. Electronic Signature.
- Acceptance by Customer of the MSA incorporating the TOS, AUP, SLA, PA and CSA hereby initiates billable services and is deemed complete by agreement to the terms as described on the online signup form(s) and completion of the ordering process.
- If any part of this MSA is found unenforceable by the court or other tribunal, the remaining provisions of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it impossible to do so.
17. Payment card industry data security standard compliance.
Nexcess is compliant and agrees to maintain compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements on its infrastructure that falls under the scope of a hosting provider as outlined in our most recent PCI DSS Report dated August 1, 2018. In the event that Nexcess fails to maintain said PCI DSS compliance, Customer’s sole and exclusive remedy shall be the option to terminate this Agreement by providing Nexcess with thirty (30) days’ written notice. If Customer fails to exercise the option to terminate referenced in the previous sentence within sixty (60) days of being notified of Nexcess’ failure to maintain PCI DSS compliance, said option to terminate this Agreement is forfeited. To the extent that Customer’s use of the Services qualifies Nexcess as a “Service Provider” as the term is defined under the most recent version of the PCI DSS requirements for which Nexcess is certified as compliant, Nexcess acknowledges that Nexcess is responsible for the security of cardholder data that Nexcess, in its role as a Service Provider, possesses or otherwise stores, possesses or transmits on behalf of Customer, or to the extent that we could impact the security of Customer’s cardholder data environment in Nexcess’ role as Service Provider.
To the extent that Customer’s use of the Services qualifies Customer as a “Service Provider” as the term is defined under the most recent version of the PCI DSS requirements, Customer hereby acknowledges that Customer is responsible for the security of cardholder data that Customer, in its role as a Service Provider, possesses or otherwise stores, possesses or transmits on behalf of its clients, or to the extent that Customer could impact the security of its clients’ cardholder data environment in Customer’s role as Service Provider.
Please note that regardless of the other provisions of this section, the ultimate responsibility for ensuring compliance with the PCI DSS requirements lies with Customer and not Nexcess. For additional information regarding PCI DSS compliance, please review the following: http://www.nexcess.net/compliance/pci-compliant-hosting.
18. Work order form.
- The specific services to be provided and any terms and conditions relative to those specific services shall be set forth in writing in an approved Work Order Form that shall be signed by an authorized representative of both Nexcess and Customer. Customer may also accept the terms and conditions of the Work Order Form through their use of the services specified in the Work Order Form. Each Work Order Form shall be subject to all of the terms and conditions of this Agreement, in addition to the specific terms and conditions set forth in the Work Order Form. In the event that any terms or conditions of a Work Order Form conflict with the terms and conditions of this Agreement, the terms and conditions of the Work Order Form shall control.
19. Use of customer logo and testimonials
- If, and only if, Customer executes a separate writing that explicitly expresses Customer’s consent to be bound by the terms and conditions of this Section 19, Customer hereby grants to Company a non-exclusive, non-sublicensable, royalty free, revocable license to use any of Customer’s trademarks, service marks, names, trade names, likenesses, and logos (the “Logos”) in connection with Company’s advertising, marketing, promotional activities, and websites. Customer further agrees that Company may use any testimonial(s) submitted by Customer in the same manner that Company is authorized to use the Logos licensed herein. Other than the license granted by this Section 19, Company acknowledges and agrees that it shall not acquire any right, title, or interest in the trademark rights to the Logos and all said rights shall remain the sole and exclusive property of Customer. Customer represents and warrants that Customer owns all rights and interests licensed to Company pursuant to this Section 19 and that the Logos do not infringe upon the rights of any third party not a party to this MSA. Customer may withdraw its consent to be bound by this Section 19, at any time, by providing Company with thirty (30) days’ written notice.
20. Promotional Codes
- Company may, at times, offer promotional codes (“Promotional Code(s)”) which entitle customers to credits (“Promotional Code Credits”) that can be used towards the future purchase of Nexcess’ products or services. Promotional Codes may require a minimum purchase amount in order to be redeemed. Neither Promotional Codes nor Promotional Codes Credits can be applied to previously placed orders and Promotional Codes may only be redeemed by new customers that have not previously purchased services from Company. Promotional Codes and Promotional Codes Credits may not be combined with any other offer or discount. Customer is limited to one (1) Promotional Code and any attempt by Customer to redeem more than one (1) Promotional Code, at any time, shall invalidate any and all Promotional Code Credits granted to Customer. All Promotional Code Credits granted to Customer pursuant to a Promotional Code shall be valid for six (6) months from the date that Customer redeems a Promotional Code and all Promotional Code Credits that remain unused by Customer following this six (6) month period are forfeited by Customer. Promotional Code Credits may not be used to pay for any taxes and may not be used to purchase certain products or services at Company’s sole discretion. To apply a Promotional Code, Customer must enter the Promotional Code prior to completing Customer’s first order with Company. Promotional Code Credits awarded after a Customer redeems a Promotional Code are not transferable and may not be redeemed for cash. Company expressly reserves the right to discontinue Promotional Codes and Promotional Code Credits at any time in Company’s sole discretion.
21. Cloud Services
- Notwithstanding anything to the contrary herein, no refunds shall be issued for the services that Nexcess refers as “Nexcess Cloud”. However, in the event that Customer utilizes the Nexcess Cloud and Customer, within the Customer Portal, amends Customer’s use of a Nexcess Cloud service in a way that reduces the fees owed for Customer’s use of a specific Nexcess Cloud service, prior to the expiration of Customer’s then-current billing term, Customer will be issued a pro-rated credit (“Cloud Credit”).
The Cloud Credit amount is calculated by multiplying the Daily Rate by the number of full twenty-four-hour periods remaining in Customer’s then-current billing term at the time Customer submits the request to amend Customer’s use of the specific Nexcess Cloud service. “Daily Rate” means the total fees paid by Customer to Company for a specific Nexcess Cloud service, within Customer’s then-current billing term, divided by 30.42.
- Legal Inquiries:
c/o: Legal Department
21700 Melrose Ave.
Southfield, MI 48075
Facsimile No.: +1-248-281-0473