WEB HOSTING SERVICES
AGREEMENT
This Web Hosting Services Agreement ("Agreement") is
a valid legal agreement between Biro Networks Inc. ("Biro
Networks") and you, the individual or single entity ordering
Biro Network's web hosting services ("Services") either
via an on-line order form or via Biro Network's customer service
call center ("Sign-up Process"). This Agreement governs
your purchase and use of Biro Network's Services ordered by you
during the Sign-up Process.
You must complete the acceptance process below before Biro Networks
will activate the Services. PLEASE READ THIS AGREEMENT CAREFULLY
BEFORE COMPLETING THE ACCEPTANCE PROCESS. By selecting the "ACCEPT"
button below, you agree to be bound by the terms and conditions
of this Agreement ("Terms of Service"). If you do not
agree to be bound by these Terms of Service, you should select
the "DECLINE" button below. Biro Networks reserves the
right to reject this Agreement for any reason prior to acceptance.
Activation of the Services will indicate Biro Network's acceptance
of this Agreement.
Biro Networks may amend or otherwise modify this Agreement at
any time and from time to time without notice to you. You will
be bound by the amended Agreement upon your continued use of the
Services after the revised Agreement is posted at this web site.
You may identify whether Biro Networks has revised this Agreement
by the Effective Date in Section 9.9 below.
1. Services
1.1 Biro Networks offers a number of standard and customized
shared and dedicated web hosting plans as published on the Biro
Networks website for the particular brand of Service offered by
Biro Networks. You may also purchase optional add-ons. Subject
to these Terms of Service and during the term of this Agreement,
Biro Networks agrees to provide to you the Services you select
during the Sign-up Process. Biro Networks reserves the right to
amend its Services offerings and to add, delete, suspend or modify
the terms and conditions of the Services, at any time and from
time to time, and to determine whether and when any such changes
apply to both existing and future customers.
1.2 At your request, and subject to your agreement
during the ordering process to the applicable registration agreement
established by third parties who provide domain name registration
services to Biro Networks and the payment of applicable fees,
additional Services that you purchase from Biro Networks may include
acquisition and registration of a second-level domain name on
your behalf. You hereby appoint Biro Networks and third parties
who provide domain name registration services to Biro Networks
as your agents in for the acquisition, registration and ongoing
administration of domain names on your behalf and you authorize
Biro Networks and third parties who provide domain name registration
services to Biro Networks to select and issue binding instructions
to domain name registrars and registries used to acquire, register
and administer domain names on your behalf. Biro Networks provides
this Service as a convenience to you only and you hereby waive
any and all claims that you may have, or which may later arise,
against Biro Networks for any and all damages, losses, claims
or expenses arising out of or related to the acquisition, registration
and/or use of such domain name. In addition, Biro Networks reserves
the right, in Biro Network's sole discretion, to refuse to acquire
or register any domain name requested by you, and to discontinue
the use of any domain name requested by you.
1.3 Biro Networks offers domain name registration
services as an accredited registrar with the Internet Corporation
for Assigned Names and Numbers (ICANN). Currently, Biro Networks
works with Exabytes Inc., also an ICANN accredited registrar,
to provide these services to its customers. Upon Biro Networks
providing you domain name registration services and your payment
of applicable fees, you hereby agree to the terms and conditions
of Exabyte’s Registration Agreement at http://exabytes.com/about/legal/terms/
and the following terms and conditions applicable to all Biro
Networks Brand domain name registration services:
- You acknowledge and agree that Biro Networks cannot guarantee
that you will obtain a desired domain name registration, even
if an inquiry indicates that a domain name is available at
the time of your application for same. You represent that,
to the best of the your knowledge and belief, neither the
registration of the domain name nor the manner in which it
is directly or indirectly to be used, infringes upon the legal
rights of a third party and further, that the domain name
is not being registered for nor shall it at any time whatsoever
be used for any unlawful purpose.
- You acknowledge that registering or reserving a domain name
does not guarantee immunity from objection, challenge, suspension,
cancellation, transfer or revocation of that domain name by
Biro Networks, the Internet Corporation for Assigned Names
and Numbers (ICANN), government bodies, or third parties.
- You acknowledge and agree to submit to proceedings under
ICANN's Uniform Domain Dispute Policy ("UDRP") http://www.icann.org/dndr/udrp/policy.htm
and comply with all other requirements set forth by ICANN,
applicable registries, governing bodies, and agencies providing
enforceable law, rules, and policies for domain name registrants.
You agree that in the event a domain name dispute arises with
any third party, you will indemnify and hold us harmless pursuant
to the terms and conditions contained in the applicable policy.
If Biro Networks is notified that a complaint has been filed
with a judicial or administrative body regarding your domain
name, Biro Networks may, at its sole discretion, suspend your
ability to use your domain name or to make modifications to
your registration records until (i) Biro Networks is directed
to do so by the judicial or administrative body, or (ii) Biro
Networks receives notification by you and the other party
contesting your domain that the dispute has been settled.
Furthermore, you agree that if you are subject to litigation
regarding your registration or use of your domain name, Biro
Networks may deposit control of your registration record into
the registry of the judicial body by supplying a party with
a registrar certificate from us.
- The person named as Registrant in the required "Whois"
database of registered domain names managed by all registrars
shall be the registered name holder. The person named as Administrative
contact at the time the controlling Account Identifier and
Password are secured, shall be deemed the designate of the
Registrant with the authority to manage the domain name. You
agree that prior to transferring ownership of your domain
name to another person (the "Transferee") you shall
require the Transferee to agree, in writing to be bound by
all the terms and conditions of this Agreement. If the Transferee
fails to be bound in a reasonable fashion (as determine by
us in our sole discretion) to the terms and conditions in
this Agreement, any such transfer will be null and void.
- As part of the registration process, you are required to
provide us certain information and to update us promptly as
such information changes such that our records are current,
complete and accurate. You are obliged to provide us the following
information:
- your name and postal address (or, if different, that
of the domain name holder);
- the domain name being registered;
- the name, postal address, e-mail address, and voice
and fax (if available) telephone numbers of the administrative
contact for the domain name;
- the name, postal address, e-mail address, and voice
and fax (if available) telephone numbers of the billing
contact for the domain name; and
- the name, postal address, e-mail address, and voice
and fax (if available) telephone numbers of the technical
contact for the domain name.
- You agree and acknowledge that we will make domain name
registration information you provide available to ICANN, to
the registry administrators, law enforcement agencies and
to other third parties as applicable. You further agree and
acknowledge that we may make publicly available, or directly
available to third party vendors, some or all, of the domain
name registration information you provide, for purposes of
inspection (such as through the Whois service) or other purposes
as required or permitted by ICANN and applicable laws. You
hereby irrevocably waive any and all claims and causes of
action you have arising from such disclosure or use of your
domain name registration by Biro Networks.
- Your willful provision of inaccurate or unreliable information,
your willful failure to promptly update information provided
to us, or any failure to respond to inquiries by us addressed
to the e-mail address of the registrant, the administrative,
billing or technical contact appearing in the Whois directory
with respect to a domain name concerning the accuracy of contact
details associated with the registration shall constitute
a material breach of this Agreement and be a basis for cancellation
of the domain name registration.
- You acknowledge that Biro Networks provides domain name
services subject to its ICANN accreditation and are provided
at Biro Network's sole discretion. If Biro Networks for any
reason ceases providing domain name services, your sole remedy
shall be to transfer your domain name to another registrar.
2. Fees and Payment Terms
2.1 Biro Networks may charge set up fees, recurring
service fees, and other one-time fees for optional services and,
if requested by you, fees for domain name registration services
(collectively "Service Fees"). Unless otherwise specified in any
written offer or promotion, the Service Fees published on the
Biro Networks website for the particular brand of Service you
ordered are applicable to all transactions between you and Biro
Networks. Biro Networks may amend the Services and/or the Service
Fees associated with any of the Services at any time and from
time to time without notice to you.
2.2 All Service Fees are due according to the
schedule published on the Biro Networks website for the particular
brand of Services you ordered or, if not published, on the first
day of the billing cycle. All service fees and other monetary
payments must be made in U.S. Dollars. If you are not billed by
invoice, you authorize Biro Networks to charge the credit card,
debit card or bank account (whether via ACH service or otherwise)
(your "Payment Process") that you provide to Biro Networks for
payment of the Service Fees for Services you order before Biro
Networks activates the Services. You further authorize Biro Networks
to charge you according to your Payment Process for the amount
of all subsequent periodic Service Fees (at Biro Network's then-current
rates) prior to the commencement of any renewal period for such
Services as described in Section 3 of this Agreement and for the
amount of all other fees and charges (at Biro Network's then-current
rates) as they become payable pursuant to this Agreement. Services
Fees and all other fees and charges that become due during any
renewal period will be charged according to your previous payment
option and/or Payment Process. All Payment Process payments are
deemed authorized by you and will be assessed in real time.
2.3 If Biro Networks does not receive payment
from your Payment Processor (i.e., credit or debit card issuer
or other financial institution), you agree to pay Biro Networks
all amounts due upon demand. Biro Networks may charge you for
a late payment fee equal to one and one-half percent (1.5%) on
any overdue balance, or the maximum amount allowed by law if less,
for each month or fraction of a month the overdue amount remains
unpaid. Biro Networks may also charge you for an administrative
fee for any returned checks or if your Payment Processor declines
payment. You agree to pay Biro Network's collection costs, including
reasonable attorneys' fees, if Biro Networks is required to take
action to collect any amounts that you fail to pay when due pursuant
to this Agreement. 2.4 Biro Networks may, in its sole and exclusive
discretion, immediately suspend or terminate your Services without
notice to you if you fail to provide valid Payment Processor information
or authorization or fail to pay for any Services when due. Biro
Networks may charge a Fifty Dollar ($50.00) fee to reinstate any
Service that has been suspended or terminated.
3. Term and Termination
3.1 The Agreement will continue for the term
stated in during the Sign-up Process or, if no term is stated,
on a month-to-month basis. The Agreement will automatically renew
for successive terms, each equal in length to that of the initial
term. Either party may terminate this Agreement effective at the
end of the then current term, whether annual, month-to-month or
some other fixed term, upon at least thirty (30) days notice prior
to the end of the then current term and such termination will
be effective upon expiration on the last day of the then current
term. The termination of this Agreement will constitute the termination
of all of your Services.
3.2 If you breach any term of this Agreement
including, but not limited to, Section 2 (Fees and Payment Terms)
and Section 5 (Restrictions on Use), Biro Networks may, in its
sole and exclusive discretion, suspend or terminate your Services
immediately and without notice to you. Service Fees may continue
to accrue on suspended accounts and you will continue to remain
responsible for the payment of any Service Fees that accrue during
the period of suspension.
3.3 IF THIS AGREEMENT IS TERMINATED FOR ANY REASON
PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR ANY SUCCESSIVE
TERM, BIRO NETWORKS WILL NOT PROVIDE ANY REFUND OR CREDIT TO YOU
FOR ANY SERVICE FEES THAT YOU PAID IN ADVANCE, BY CREDIT CARD
OR OTHERWISE, AND BIRO NETWORKS MAY, IN ADDITION, CHARGE YOU AN
ACCOUNT ADMINISTRATION FEE OF TWENTY DOLLARS ($20.00). You authorize
Biro Networks, in its sole and exclusive discretion, to charge
your Payment Process or forward an invoice to you immediately
upon the termination of this Agreement for the amount of any Service
Fees that are then outstanding.
4. Warranty Disclaimers and Limitations of Liability
YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY
PROVISIONS SET FORTH IN THIS SECTION 4 ARE REASONABLE AND ARE
FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND BIRO NETWORKS.
YOU ACKNOWLEDGE THAT BIRO NETWORKS WOULD NOT BE ABLE TO PROVIDE
THE SERVICES ON AN ECONOMIC BASIS WITHOUT SUCH DISCLAIMERS AND
LIMITATIONS.
4.1 BIRO NETWORKS PROVIDES THE SERVICES AND THE
LICENSED MATERIAL (AS DEFINED IN SECTION 7.2 BELOW) TO YOU ON
AN "AS IS" AND "AS AVAILABLE" BASIS. BIRO NETWORKS MAKES NO EXPRESS
WARRANTIES OF ANY KIND AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING ANY
SERVICES OR ANY EQUIPMENT THAT BIRO NETWORKS MAY PROVIDE TO YOU
OR REGARDING THE LICENSED MATERIAL. BIRO NETWORKS DOES NOT WARRANT
THAT THE SERVICES, THE LICENSED MATERIAL OR THE USE OF EITHER
WILL BE WITHOUT INTERRUPTION, ERROR-FREE OR FREE FROM VIRUSES
OR OTHER HARMFUL COMPONENTS. BIRO NETWORKS MAKES NO WARRANTIES
AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
OR THE LICENSED MATERIAL OR AS TO THE ACCURACY, RELIABILITY OR
CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED
IN OR PROVIDED THROUGH THE SERVICES, THE LICENSED MATERIAL OR
THE INTERNET. BIRO NETWORKS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS
ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER
TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE
SERVICES PROVIDED BY BIRO NETWORKS. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY BIRO NETWORKS, ITS EMPLOYEES, REPRESENTATIVES,
AGENTS, AFFILLIATES OR CONTRACTORS WILL CREATE A WARRANTY, EXPRESS
OR IMPLIED, NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
SOME STATES (UNITED STATES ONLY) DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES. CONSEQUENTLY, THE ABOVE EXCLUSION MAY NOT
APPLY TO YOU TO THAT LIMITED EXTENT. YOU AGREE THAT, IF APPLICABLE
LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, THE
LICENSED MATERIAL OR ANY EQUIPMENT THAT BIRO NETWORKS MAY PROVIDE
TO YOU, ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO NINETY
(90) DAYS FROM THE DATE THE SERVICE COMMENCED OR THE LICENSED
MATERIAL IS INSTALLED.
4.2 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS
BIRO NETWORKS AND ITS SUBSIDIARIES AND AFFILIATES FROM AND AGAINST
ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES,
INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, RELATED
TO OR ARISING FROM: (I) YOUR AND YOUR END USERS' USE OF THE SERVICES
AND/OR THE LICENSED MATERIAL; (II) ANY VIOLATION OF THE AUP; (III)
ANY LIABILITIES, CLAIMS, OR EXPENSES ARISING FROM YOUR REGISTRATION,
ATTEMPT TO REGISTER, MAINTENANCE, INFRINGEMENT, OR PROTECTION
OF A DOMAIN NAME AND THE RIGHTS ASSOCIATED WITH SUCH, (IV) ANY
BREACH BY YOU ANY PROVISION OF THIS AGREEMENT; AND/OR (V) ANY
ACTS OR OMISSIONS BY YOU.
4.3 Information obtained by you from the Internet
may be inaccurate, offensive or in some cases illegal. Biro Networks
has no control over information contained on the Internet and
accepts no responsibility for any information that you may receive
via the Internet.
4.4 You accept full responsibility to verify
the truth and accuracy, legality and ownership of the information
that you disseminate or display in connection with your use of
the Services or obtain from the Internet.
4.5 You agree that if Biro Networks takes any
corrective action under this Agreement in response to your or
your end users' actions or failures to act, that corrective action
may adversely affect you or your end users and you agree that
Biro Networks shall have no liability to you or your end users
due to any corrective action taken by Biro Networks.
4.6 Biro Networks strongly encourages you to
back-up your data regularly. You agree that Biro Networks has
no obligation to back-up any data related to your website unless
Biro Networks expressly agrees otherwise in writing and you have
currently paid for such back-up Services. You agree that you will
regularly back-up your data whether or not Biro Networks has any
obligation to do so. You further agree that your failure to back-up
your data regularly will mitigate against any claim for damages
you may bring against Biro Networks relating to any loss of your
data.
4.7 The server Biro Networks provides for your
dedicated hosting services is accessible only to you and is dedicated
solely to your use. However, you acknowledge that Biro Networks
often re-uses and/or recommissions its dedicated servers to accommodate
changing client demands. While Biro Networks follows standard
hard drive data cleansing procedures, you acknowledge that the
server used to provide your dedicated hosting services may have
been used to provide such services to other Biro Networks clients
in the past, and may be used to provide such services to other
Biro Networks clients in the future. Because of this, data or
meta-data shadows may physically remain on the drive even after
cleaning it, although the data cannot be accessed without performing
extraordinary procedures, if at all. While unlikely, Biro Networks
cannot completely ensure that your deleted data will not be accessible
to future Biro Networks dedicated hosting customers who will use
your server for dedicated hosting services. You agree to never
recover or reconstruct, or attempt to recover or reconstruct,
any data previously saved on any hard drive provided for your
dedicated hosting services. You will be solely responsible for
any damages or losses to Biro Networks, and will indemnify Biro
Networks for any third party losses, resulting from a violation
of this paragraph.
4.8 YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING,
BUT NOT LIMITED TO, NEGLIGENCE, HOLD BIRO NETWORKS OR ITS LICENSORS
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR
USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS
OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS
APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL
THEORY AND APPLY EVEN IF BIRO NETWORKS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS BIRO NETWORKS'S
LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
4.9 YOU AGREE THAT YOU WILL NOT HOLD BIRO NETWORKS
OR ITS LICENSORS LIABLE UNDER ANY CIRCUMSTANCE FOR ANY DAMAGES
THAT YOU SUFFER THAT RESULT FROM (I) THE USE OF OR INABILITY TO
USE THE SERVICES OR LICENSED MATERIAL, (II) MISTAKES, OMISSIONS,
INTERRUPTIONS, DELETION OF FILES, LOSS OR CORRUPTION OF DATA AND/OR
BACK-UP DATA, FAILURE TO PERFORM DATA BACK-UP FUNCTIONS (OTHER
THAN THOSE EXPRESSLY AGREED TO BY BIRO NETWORKS AND CURRENTLY
PAID FOR BY YOU), ERRORS, VIRUSES, DEFECTS, DELAYS IN OPERATION
OR TRANSMISSION, NON-DELIVERIES, MISDELIVERIES OR ANY FAILURE
OF PERFORMANCE, WHETHER OR NOT CAUSED BY BIRO NETWORKS'S NEGLIGENCE,
ACTS OF GOD, ANY FAILURE OF BIRO NETWORKS'S NETWORK OR SYSTEMS,
THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BIRO NETWORKS'S RECORDS,
PROGRAMS, EQUIPMENT OR SERVICES; (III) YOUR ACTS OR OMISSIONS;
OR (IV) THE ACTS OR OMISSIONS OF THIRD PARTIES.
4.10 YOU AGREE THAT BIRO NETWORKS'S MAXIMUM LIABILITY
TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, COSTS AND
CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS (WHETHER IN CONTRACT,
TORT OR OTHER LEGAL THEORY) SHALL BE LIMITED TO THE LESSER OF
(A) THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY YOU TO BIRO
NETWORKS FOR THE THREE MONTH PERIOD IMMEDIATELY PRECEEDING THE
DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION
AROSE, (B) PROVEN DIRECT DAMAGES, AND (C) TEN THOUSAND DOLLARS
($10,000.00).
4.11 The terms of this Section 4 shall survive
any termination of this Agreement.
5. Restrictions on Use
5.1 Your use of the Services is subject to Biro
Network's Acceptable Use Policy, as revised from time to time
(the "AUP"), which is incorporated herein by reference. The AUP
is available on Biro Network's website at http://www.Biro Networks.com/about/usage_policy.htm.
In the event of any inconsistencies between this Agreement and
the AUP, the terms of the AUP shall govern.
5.2 Biro Networks does not intend to systematically
monitor the content that is submitted, stored, distributed or
disseminated by you via the Services (the "Your Content"). Your
Content includes content of your end users and/or users of your
website. Accordingly, you are responsible for your end users'
content and all activities on your website. Biro Networks, in
its sole and exclusive discretion, may immediately take corrective
action, including, but not limited to, removal of all or a portion
of Your Content and suspension and/or termination of your Services,
in the event of notice of any possible violation of the AUP by
you or your end users. You agree that Biro Networks will have
no liability to you or any of your end users due to any corrective
action that Biro Networks may take and that you will not be entitled
to a refund of any fees paid in advance prior to the corrective
action.
5.3 You warrant that Your Content does not violate
or infringe any copyright, trademark, patent or intellectual or
other proprietary property right of any third party or contain
any obscene or libelous material or otherwise violate any law
or regulation.
5.4 Your use of networks or computing resources
provided to Biro Networks by third party providers and made available
to you as part of the Services is subject to the respective permission
and usage policies of such third parties.
5.5 You expressly (i) grant to Biro Networks
a license to cache the entirety of Your Content and your web site,
including content supplied by third parties, hosted by Biro Networks
under this Agreement, and (ii) agree that such caching is not
an infringement of any of your intellectual property rights or
any third party's intellectual property rights.
5.6 If Biro Networks assigns to you an Internet
Protocol address for your use, you may use that Internet Protocol
address only as expressly permitted by Biro Networks in connection
with your use of the Services during the term of this Agreement.
Biro Networks will maintain and control ownership of all Internet
Protocol numbers and addresses that may be assigned to you by
Biro Networks. Biro Networks reserves the right, in its sole and
exclusive discretion, to change or remove any and all such Internet
Protocol numbers and addresses.
5.7 You agree that you will not use excessive
amounts of CPU processing on any of Biro Network's servers. Biro
Networks, in its sole and exclusive discretion, may immediately
take corrective action, including, but not limited to, assessment
of additional fees and suspension and/or termination of Services,
in the event you violate this policy. You agree that Biro Networks
will have no liability to you or any of your end users due to
any corrective action that Biro Networks may take and that you
will not be entitled to a refund of any fees paid in advance prior
to the corrective action.
5.8 You agree that you will not use bandwidth
and disk usage amounts that exceed the limits applicable to your
Services as published on the Biro Networks website for the particular
brand of Services you ordered ("Agreed Usage"). Biro Networks
will monitor your bandwidth and disk usage. Biro Networks, in
its sole and exclusive discretion, may immediately take corrective
action, including, but not limited to, assessment of additional
fees and suspension and/or termination of Services, in the event
you exceed the Agreed Usage. You agree that Biro Networks will
have no liability to you or any of your end users due to any corrective
action that Biro Networks may take and that you will not be entitled
to a refund of any fees paid in advance prior to the corrective
action.
6. Trademarks and Proprietary Rights
6.1 Biro Networks is a registered trademark and
service mark, and other graphics, logos, and service names used
by Biro Networks in connection with the Services or other products
or services offered by Biro Networks and its subsidiaries and
affiliates, to identify the products or Services of Biro Networks
or its subsidiaries and affiliates (collectively the "Biro Networks
Trademarks") are the trademarks of Biro Networks and its subsidiaries
and affiliates. You agree not to use the Biro Networks Trademarks
in connection with your products or services, or any third-party's
products or services, or in any manner that disparages or discredits
Biro Networks. All other brands and names (including third-party
product names) used in connection with the Services or other products
or services offered by Biro Networks and its subsidiaries and
affiliates are the property of their respective owners.
6.2 Biro Networks acknowledges that it claims
no proprietary rights in Your Content or any intellectual property
right contained therein. You acknowledge and agree that Biro Networks
and its licensors own all right, title, and interest in: (a) the
Services and any other products or services offered by Biro Networks
and its subsidiaries and affiliates; (b) the technology available
to you as part of the Services; (c) and all content, including
but not limited to text, software, music, sound, photographs,
video, graphics, or other material contained or maintained on
the websites maintained by Biro Networks and its subsidiaries
and affiliates (collectively "Biro Networks Content"), excluding
Your Content.
7. License
7.1 This Section 7 (the "License") applies to
you only if you use software licensed to you in connection with
the Services and is in addition to and not in lieu of all other
Terms of Service that govern your Services.
7.2 In connection with the Services, Biro Networks
may make available to you the Biro Networks Content, certain technology
and software owned by Biro Networks or third parties (which may
include corresponding documentation, associated software components,
media, printed materials, and "online" and electronic documentation
and all updates and upgrades thereto) (the "Licensed Material").
You agree that the Licensed Material is the exclusive property
of Biro Networks and its licensors and is protected by copyright
laws and international copyright treaties, as well as other intellectual
property laws and treaties.
7.3 Biro Networks grants to you the non-exclusive
right to install the Licensed Material on a single computer; or
install and store the Licensed Material on a single storage device,
such as a network server, used only to install the Licensed Material
on your other computers over an internal network, provided you
have a license for each separate computer on which the Licensed
Material is installed and run. The Licensed Material is licensed,
not sold. The license for the Licensed Material may not be shared,
installed or used concurrently on different computers. In the
event the Licensed Material is distributed along with other Biro
Networks Licensed Materials as part of a suite of products (collectively,
the "Suite"), the license of the Suite is licensed as a single
product and none of the products in the Suite, including the Licensed
Material, may be separated for installation or use on more than
one computer.
7.4 You may not remove or alter any copyright
notices on any copies of the Licensed Material. You may not make
or distribute copies of the Licensed Material to third parties
or electronically transfer the Licensed Material from one computer
to another or over a network. You may not alter, merge, modify,
adapt or translate the Licensed Material, or reverse engineer,
decompile, or disassemble the Licensed Material, except and only
to the extent that such activity is expressly permitted by applicable
law notwithstanding this limitation. You may not modify the Licensed
Material or create derivative works based upon the Licensed Material.
You may not sell, rent, lease, lend, assign, transfer or sublicense
the Licensed Material. You must comply with all applicable laws
regarding use of the Licensed Material. Biro Networks may provide
you with support services related to the Licensed Material ("Support
Services"). Use of Support Services is governed by the Terms of
Service. Any supplemental software code Biro Networks provides
to you as part of the Support Services will be considered part
of the Licensed Material and subject to the terms and conditions
of this License. With respect to technical information you provide
to Biro Networks as part of the Support Services, Biro Networks
may use such information in compliance with its Privacy Policy.
7.5 Without prejudice to any other rights, Biro
Networks may, in its sole and exclusive discretion, terminate
this License if you fail to comply with the terms and conditions
of this License. In such event, you must destroy all copies of
the Licensed Material. All other rights of both parties and all
other provisions of this License will survive any termination.
7.6 The foregoing license gives you limited license
to use the Licensed Material. Biro Networks and its licensors
retain all right, title and interest, including, but not limited
to, copyright and intellectual property rights, in and to the
Licensed Material and any copies thereof. All title and intellectual
property rights in and to the content that may be accessed through
use of the Licensed Material are the property of the respective
content owner and may be protected by applicable copyright or
other intellectual property laws and treaties. This License grants
you no rights to use such content. Biro Networks and its licensors
reserve all rights not expressly granted.
7.7 The Licensed Material is provided with "RESTRICTED
RIGHTS" applicable to private and public licensees alike. Without
limiting the foregoing, use, duplication, or disclosure by the
United States Government is subject to restrictions as set forth
in this License and as provided in subparagraph (c)(1)(ii) of
the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
7.8 You agree that you will not export or re-export
the Licensed Material to any country, person, entity or end user
prohibited by the United States Export Administration Act and
the regulations promulgated thereunder. Restricted countries currently
include, but are not necessarily limited to Afghanistan, Cuba,
Iran, Iraq, Libya, North Korea, Sudan, and Syria. You represent
and warrant that neither the United States Bureau of Export Administration
nor any other federal agency has suspended, revoked or denied
your export privileges.
7.9 The Licensed Material may contain third party
software that require notices and/or additional terms and conditions.
All required third party software notices and/or terms and conditions
are made a part of and incorporated by reference into this License.
By accepting this License, you are also accepting the additional
terms and conditions, if any, set forth therein.
8. Notices
It is your responsibility to provide accurate and complete account
and contact information, including a valid e-mail address, to
Biro Networks during the Sign-up Process. It is also your responsibility
to inform Biro Networks promptly of any changes to your account
or contact information. Biro Networks has no responsibility for
communications that are misdirected as a result of your failure
to provide Biro Networks with updated contact information or as
a result of the suspension or termination of your Services.
Biro Networks may provide notice to you required by this Agreement
via e-mail at the address provided by you. You agree that notice
to you at this address is deemed sufficient regardless of your
receipt of such email. You must provide all notices to Biro Networks
required in writing to Biro Networks LLC., Attn: Brad Hinely,
105 Olde Well Loop Road, Wilmington, North Carolina 28411 or as
changed by Biro Networks via its on-line amendment of this Agreement.
9. General
9.1 Biro Networks will be excused from any delay
or failure in performance hereunder caused by reason of any occurrence
or contingency beyond its reasonable control, including but not
limited to, acts of God, earthquakes, hurricanes, tropical storms
and depressions, inclement weather, labor disputes and strikes,
riots, war and governmental requirements.
9.2 This Agreement shall be interpreted under
the laws of the State of Florida without regard to any conflict
of laws provisions. You hereby consent to the exclusive jurisdiction
and venue of the state courts sitting in New Hanover, North Carolina
or the federal courts in North Carolina to resolve any disputes
arising under this Agreement.
9.3 If any provision(s) of this Agreement is
held to be contrary to law, then such provision(s) shall be construed,
as nearly as possible, to reflect the intentions of the parties
with all other provisions of this Agreement remaining in full
force and effect.
9.4 Biro Network's failure to exercise or enforce
any right or provision of this Agreement shall not constitute
a waiver of such right or provision unless acknowledged and agreed
to by Biro Networks in writing.
9.5 This Agreement, together with the order form,
if any, you submitted on-line to order your Services, the AUP,
the Privacy Policy and all documents referenced herein and therein,
comprise the entire agreement between you and Biro Networks and
supersedes all prior agreements between the parties regarding
the subject matter contained herein. This Agreement shall apply
to all additional products and services that you purchase from
Biro Networks or its subsidiaries and affiliates, whether or not
you complete the acceptance process with respect to additional
products and services (all such additional products or services
purchased, also "Services"), and this Agreement will govern your
purchase and use of all additional Services.
9.6 This Agreement and your rights hereunder
may not be assigned or transferred to any third party. Biro Networks
reserves the right to assign this Agreement to any of its subsidiaries
or affiliates or to any third party that acquires all or substantially
all of its relevant business or assets.
9.7 You represent and warrant that, if you are
an individual, you are at least 18 years of age, that you have
read this Agreement, including Biro Network's AUP, and that you
agree to be bound by the terms and conditions of the Agreement.
You acknowledge and agree that Biro Networks can and will rely
on all representations, warranties, covenants and agreements that
you make herein.
9.8 Effective date: This policy was last updated
on January 29, 2007.
