SOUTH HOSTING USER AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE "ORDER NOW" BUTTON ON THE ORDER FORM REFERENCED HEREIN, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING SOUTH HOSTING'S PRIVACY POLICY & ACCEPTABLE USAGE POLICY. YOUR USE OF THE SERVICES ALSO CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Introduction
This User Agreement ("Agreement") is an agreement between NuMedia Inc. D.B.A South Hosting. South Hosting, a Georgia Corporation, and the party set forth in the related order form (Customer) attached hereto and hereby incorporated by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Order Form or through any other channels South Hosting provides to order and upgrade service. Such party is referred to in this Agreement as "Customer" or "you". South Hosting reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by South Hosting. Activation of the Services shall indicate South Hosting's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, South Hosting will provide to Customer the Services selected by Customer set forth on the Order Form. South Hosting reserves the right to refuse service to anyone.
2. Amendment of Agreement.
South Hosting may amend or otherwise modify this Agreement. Customer agrees that South Hosting's posting of any amendments or modifications to this website ( http://www.southwehosting.com/legal/ ) shall constitute adequate notice to Customer and that Customer shall periodically consult this web page for any changes or amendments to this Agreement. South Hosting may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Customer. If any material modification to this Agreement is unacceptable to Customer it shall be Customer's responsibility to terminate their subscription as provided in Section 3 of this Agreement. If Customer does not terminate the Agreement within 10 days of the material modification then Customer's continued use will mean that Customer has accepted the amended or modified Agreement.
3. Duration of Agreement and Cancellation Policy.
3.1 - The Initial Term shall begin upon confirmation of Customer's order or commencement of the Services to Customer and receipt of lawful funds. The term's length is choosen by customer and shall be indicated in the Order Form. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein. During the Term, and other as specified herein, this agreement cannot be terminated by customer for any reason.
3.2 - This agreement may be terminated by either party at the renewal/anniversary date by giving the other party notice at least 14 days (2 weeks) prior to the renewal/anniversary date of the Term by contacting South Hosting via phone and discussing with a customer service representative the Customers decision to renew or terminate the Customers service. In the event of nonpayment by Customer, South Hosting, at any time without notice, may terminate the Customers Service if in South Hosting's sole judgment Customer has in any way breached this Agreement (Termination for Cause).
3.3 South Hosting may also terminate this agreement in its sole discretion at any time for any or no reason, by giving Customer 72 hours notice (Termination without Cause). In the event of South Hosting executing such termination prior to the renewal/anniversary date, South Hosting's sole liability shall be to refund Customer's unused prepaid service fees prorate.
3.4 - If South Hosting cancels this agreement pursuant to any of the terms outlined in this agreement, with the exception of Termination without Cause pursuant to paragraph 3.3, South Hosting shall not refund to Customer any fees paid or prepaid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that South Hosting terminates the agreement for cause all prepaid hosting fees will be forfeited and are not refundable. Furthermore, due to the fact that damages are difficult to ascertain Customer consents that $150.00 per hosted domain and serviced package is reasonable.
3.5 - If prior to the end of the agreed on Term, Customer cancels the Services for any reason, or South Hosting terminates the Agreement due to Customer's breach of the South Hosting User Agreement or Acceptable Usage Policy, Customer will be charged a US$150.00 Breach-Of-Contract fee per domain package and per hosting account as liquidated damages. Client also forfeits any prepaid service fees. At no time shall customer receive a refund of any prepaid service fees.
3.6 - All sales are final! Except for a cancellation within the first 30 days after of the service (Limited Money-Back Guarantee) there is no "Cooling-Off Period" and Customer can not cancel this Agreement, other than provided in paragraph 3.2, prior to the end of the Term as provided herein in for any reason. If Customer cancels this Agreement before the end of the term customer shall receive no refund for any prepaid hosting fees and any such fees shall be forfeited. In the event that Customer cancels within 30 days of ordering the service by contacting South Hosting via United States Postal Service Certified Mail to P.O Box #8808, Savannah, GA 31412 with name, address, a working phone number, reason for cancellation, and signature stating intent to cancel service. A phone-based verbal verification of cancellation will be performed after receipt of cancellation letter. This is the only way to cancel. E-mail, non-certified mail, and verbal-only methods of cancellation will not be accepted. Refund of the prepaid hosting fees will be sent to Customer by check to Customers registered mailing address within 7 business days via USPS Certified Mail. No credit card refunds or charge backs of any kind will be issued. Any setup fees, fees for additional services, as well as fees paid for domain name registration ($11.95 per domain) are always non-refundable. Any promotional domain name registration will be billed at $11.95 per domain and subtracted from any prepaid hosting fees before any Money-Back-Guarantee refund is processed. Customer acknowledges and agrees that the above mentioned procedure for cancellation is the ONLY WAY TO EFFECTIVELY CANCEL a web hosting account with South Hosting and meet potential deadlines to trigger South Hosting's limited Money-Back Guarantee or to avoid automatic renewal. Any cancellation requests send to or directed to South Hosting by email and/or phone and/or regular mail shall be null and void. Customer also agrees that any request for a refund shall be forfeited, if not mailed to South Hosting via United States Postal Service Certified Mail to P.O Box #8808 , Savannah , GA 31412 with name, address, a working phone number, reason for cancellation, and signature stating intent to cancel service has not been used to cancel a web hosting account.
4. Billing and Payment.
4.1 - All fees for web hosting or other Services are due in advance and shall be in accordance with South Hosting's fee schedule, which is incorporated herein by reference and may be amended from time to time. In the event that customer elects to pay with a credit card Customer authorizes South Hosting to charge all fees owed to such credit card at the time or up to 30 days before they become due. Customer agrees to pay a $25.00 (twenty-five dollars) late fee if customer's account or accounts become more than ten (10) calendar days overdue or if Customer's credit card is not accepted when a charge is processed. Fees for renewal periods after the Initial term shall become due 30 days before the first day of such renewal period. South Hosting may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance or a lesser amount where required by law for each month or portion thereof the overdue amount remains unpaid. In addition, in the event that any amount due South Hosting remains unpaid fifteen (15) calendar days after such payment is due, South Hosting, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. Customer agrees that South Hosting may charge a $50.00 (fifty dollars) fee to reinstate accounts that have been terminated or suspended. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of South Hosting) shall be paid by Customer.
4.2 - Customer agrees that South Hosting may charge up to 30 days in advance all fees due for the Services provided to Customer under this agreement to the credit card supplied by Customer during registration or at any time thereafter and customer specifically agrees not to charge back any payments South Hosting processes through Customer's credit card.
4.3 - Customer acknowledges and specifically agrees that chargebacks - which might occur if Customer disputes South Hosting charges directly with Customer's credit card bank - are unlawful if South Hosting's service has been rendered. If customer has a fee dispute with South Hosting he has to settle such dispute with South Hosting directly without initiating any chargeback procedures.
4.4 - Customer acknowledges and specifically agrees that South Hosting may charge customer's bank account electronically for all charges due, if customer has provided South Hosting with proper bank information.
4.5 - Returned and refused checks will be assessed a $30.00 charge. We reserve the right to hold all non-cashiers checks and money orders for 7 (seven) business days in order to assure payment will clear.
4.6 - In the event of a default, Customer agrees to be responsible for all breach-off-contract fees, late fees, collection fees and expenses as well as reasonable attorneys' fees and expenses.
5. IP Address Ownership.
During the course of providing Services to customer South Hosting may assign to Customer an Internet Protocol address. Customer agrees that it has no right to a particular IP address under this agreement and accordingly South Hosting shall retain ownership of any IP address or addresses used by Customer under this agreement and that South Hosting reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
6. Caching.
Customer expressly grants to South Hosting a license to cache Customer's Content including content supplied by third parties and hosted by South Hosting under this Agreement and Customer agrees to indemnify and hold harmless South Hosting for any infringement of any third party's intellectual property rights thereby affected from said caching.
7. No Unauthorized Scripts or Executables.
Customer agrees not to run any scripts, executables or other programs or processes on South Hosting's servers or other equipment that will in any way adversely affect the performance of said equipment.
8. Bandwidth and Disk Usage.
8.1 - Customer agrees that South Hosting will monitor and meter Customer's daily bandwidth and disk usage and in the event that Customer exceeds the bandwidth or disk usage allocated to each hosting package on any given day South Hosting may take corrective action which may, at South Hosting's sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. All bandwidth is measured daily and monthly bandwidth allowances are divided by the calendar days of a given month to determine the daily bandwidth allowance. Customer agrees that in the event of a dispute South Hosting's monitoring reports shall be the final method of determination how much disk space and bandwidth was used and agrees to pay the excess usage charges when due. Customer's logs files are counted against any disk usage. Any excess usage beyond the amount included in any web hosting package is billed at $0.02 per MB. Additional transfer packs of transfer may be bought in bulk from the transfer packs page, and will not result in overage rates being charged as long as the Customer buys the additional transfer BEFORE excedding their plans alloted transfer amount.
8.2 - To avoid unfair resource distribution at no time shall Customer use more than 15 simultaneous processes by and with any of Customer's applications. All images in a Customer's hosting account must be linked to from pages within the Customer's hosting account. It is a violation of this agreement if Customer uses this account as merely an image, sound or file library. Binary files such as images, video and sound (i.e MP3, WAV, RA, GIF, JPG but not limited to those file extensions) may only account for a maximum of 50% of Customer's total bandwidth usage before customer must upgrade to a higher performance solution.
9. Intellectual Property Rights.
Customer acknowledges that South Hosting owns all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the Services and their provision. Customer further acknowledges and agrees that nothing in this Agreement shall constitute a license to Customer to resell or trade under any of South Hosting's intellectual property. This includes and is not limited to the web site template library included in the Self Promotion Package. The Customer is only allowed to utilize the templates in the collection for their own personal web sites when hosting on South Hosting servers.
10. Web Site, E-Commerce and Customer Warranties.
10.1 - Customer shall assume sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on Customer Web Site(s), including, without limitation, Customer Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, South Hosting reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Customer Content on the Web Site, or other content not supplied by South Hosting which, in South Hosting's sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes South Hosting to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on South Hosting to monitor or exert editorial control over the Web Site. South Hosting shall in no way be responsible for Customer's conduct or actions including but not limited to Customer's handling of third party information such as credit card numbers and any liabilities incurred by Customer including but not limited to tax liabilities for the conduct of Customer's on-line business.
10.2 - Customer shall be solely responsible for the development, operation, and maintenance of Customer's web site and any online store and e-commerce activities. South Hosting performs daily data backup (both tape and drive-based) of Customers data every 24-hours, the exact time being the discretion of the system administrators. South Hosting does not provide up-to-the-minute data backup. In the event of equipment failure that results in loss of customer data, South Hosting support staff will place a backup copy of Customer data as quickly as possible on a functioning system. In this event, the Customer agrees to defend, indemnify and hold South Hosting harmless from and against any and all claims, obligations, losses, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by South Hosting arising from or due to claims made by third parties (including customers of Customer) that are related to temporary equipment failure and/or data loss.
11. Disclaimer of Warranty.
Customer agrees that its use of Services and its reliance upon information provided by South Hosting are entirely at Customer's own risk. Customer acknowledges and agrees that South Hosting exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through South Hosting's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER SOUTH HOSTING, ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER SOUTH HOSTING NOR ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. SOUTH HOSTING IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY SOUTH HOSTING. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY SOUTH HOSTING EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER'S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
12. Indemnification.
Customer agrees to indemnify, defend and hold harmless South Hosting and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, any violation by Customer of this agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement or any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
13. Limitation of Liability.
13.1 - Customer agrees neither South Hosting nor any of its employees, owners, or agents shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to South Hosting at the time) which may exist in the Services or South Hosting's equipment used to provide the Services.
13.2 - Under no circumstances, including negligence, shall South Hosting or any of its employees, owners, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if South Hosting has been advised of the possibility of such damages. No South Hosting Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to South Hosting's records, programs, equipment or services.
13.3 - Notwithstanding anything to the contrary in this Agreement, South Hosting's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the twelve (12) month period prior to the date the cause of action arose or the injury or loss occurred.
15.4 - Customer understands, acknowledges and agrees that if South Hosting takes any corrective action under this Agreement because of an action of Customer or one its customers that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that South Hosting shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by South Hosting.
13.5 - This limitation of liability reflects an informed and voluntary allocation of risks between the parties and applies to risks both know and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
14. Prohibited Uses and Activities
South Hosting may immediately take corrective action, including removal of all or a portion of the Customer's content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer's account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this agreement. Customer hereby agrees that South Hosting shall have no liability to Customer or any of Customer's customers due to any corrective action that South Hosting may take (including, without limitation, disconnection of Services).
A. Violations of Intellectual Property Rights
Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity's intellectual property rights including, rights of privacy and rights of publicity are prohibited. South Hosting is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Copyright Infringement Notice Information" below).
B. Spamming
Customer agrees not to send spam or resell its services to anyone who sends spam. The term "spam" includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of a dispute South Hosting reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list.
C. Misrepresentation of Transmission Information
Customer agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell services to anyone who engages in said conduct.
D. Viruses and Other Destructive Activities
Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment).
E. Malicious or Unauthorized Hacking
Customer agrees not conduct or promote any "Hacking" activity and agrees that "Hacking" as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity on the part of Customer is a material breach of this Agreement.
D. Export Control Violations
The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited.
F. Adult Services & Sites/Child Pornography
Pornography and sex-related merchandising are prohibited on South Hosting servers. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites. The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is also prohibited. South Hosting will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
G. Other Illegal Activities
The use of the Services to engage in any activities that are determined by South Hosting, in its sole and absolute discretion, to be illegal or which in South Hosting's opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws. South Hosting will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
H. Obscene, Defamatory, Abusive or Threatening Language
Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited. “ Hate sites" or content that could be reasonably considered or interpreted as slanderous or libelous.
I. Other Prohibited Activities
Engaging in any activity that, in South Hosting's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, South Hosting's business, operations, reputation, goodwill, customers and/or customer relations, or the ability of South Hosting's customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with South Hosting in correcting or preventing violations of this Agreement by, or that result from the activity of, a customer of the Subscriber is a violation of this Agreement.
15. Copyright Notice Infringement Information
Pursuant to the Digital Millennium Copyright Act, South Hosting has adopted a policy that provides for termination of websites hosted by South Hosting that are found to infringe on copyrights of third parties. Customer expressly acknowledges that they are aware of this provision and Customer waives any claims it may have should it be injured by the enforcement of this provision. If a copyright holder believes that there has been a violation of their copyright on a website that is hosted by South Hosting and the copyright holder demands that South Hosting remove the website or disable the material in question, South Hosting will remove the website or disable the material if the copyright holder provides South Hosting with all of the following information:
A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
1. Identification of the copyrighted work that is claimed to have been or being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
2. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material. Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
3. A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
4. A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
16. Disclosure of Customer Information and Legal Process
Although South Hosting will ordinarily maintain strict Customer confidentiality there are certain exceptions where South Hosting may disclose any information in its possession, including, without limitation, information about Subscribers, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or official governmental request, to protect South Hosting or others from harm, and/or to ensure the proper operation of the Services. South Hosting has no obligation to notify any person, including the Subscriber about whom information is sought, that South Hosting has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation.
17. Force Majeure.
South Hosting shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, strikes, riots, vandalism, sabotage, embargo, fires, flood, inclement weather, third-party provider outages, cable cuts, interruption of or delay in transportation, power crisis shortages, unavailability of or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services, acts of terrorism, and or uncontrollable acts of God , or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, wars; or strikes, lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.
18. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by California law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in California . Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Savannah , Georgia . An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personal jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement.
19. Assignment.
South Hosting may assign this agreement at any time and without notice to Customer. Customer shall not have the right to assign this Agreement without the prior written consent of South Hosting. This Agreement shall be binding upon and inure to the benefit of Customer and South Hosting and their successors and permitted assigns.
20. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
21. Right of Agreement Termination
South Hosting reserves the right to terminate Services if your usage of the Services results in, or is the subject of, legal action or threatened legal action, against South Hosting or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
