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Terms
These
terms and conditions ("Terms") govern the provision by A.R.S. Day School
and the use by the customer ("Customer") of the A.R.S. Day School family
of services ("Services"). References in these Terms to "Customer"
include individuals authorized by Customer to use the Services, except
where the context clearly requires otherwise. By ordering and using the
Services or any portion thereof, Customer agrees as follows:
1. The Services. The Services consist of various forms of web hosting,
terminal server services, design, monitoring, management, maintenance,
development, managed security services, and other Internet-related
services. Additional features and services may be made available as
announced by and under terms and conditions established by A.R.S. Day
School, including without limitation any changes to these Terms made by
A.R.S. Day School from time to time hereafter and provided to Customer
in writing. The Services and all features or aspects thereof, whether
described herein or in any such additional materials, shall continue to
be governed by and provided subject to these Terms unless or except to
the extent that a separate agreement has been signed by Customer and
A.R.S. Day School specifically relating to such additional features or
services which expressly makes exception to these Terms.
2. Term. Customer's agreement for the use of the Services will be in
effect from the date Customer's Order is accepted by A.R.S. Day School
as provided below, and, unless terminated earlier as set forth herein,
shall continue thereafter for the minimum term (if any) set forth in
such Order. If no minimum term is specified in such Order, or if the
Services continue beyond such minimum term without execution by both
parties of an extension to such Order, the Services will be provided on
a month-to-month basis at the then prevailing month-to-month rates for
the Services until either party gives the other at least thirty (30)
days written notice of termination of the Services.
3. Rates and Charges. The rates and charges payable by Customer for the
services shall be as set forth in the Customer's Order(s) which have
been accepted by A.R.S. Day School as provided herein, and shall be
computed in accordance with A.R.S. Day School' rate schedules. Rates and
charges are subject to change by A.R.S. Day School on thirty (30) days
notice, except that if Customer has elected a minimum term for the
Services in its Order. Then the rates for the Services in effect at the
time of the Order shall remain in effect for the duration of such
minimum term (unless otherwise provided in such Order). Customer will be
invoiced monthly for usage of the Services. Payment must be received by
A.R.S. Day School within 30 days after the date of the invoice. Customer
will pay or reimburse A.R.S. Day School for any and all sales and use
taxes, duties, or levies imposed by any authority, government, or
government agency (other than taxes levied on A.R.S. Day School' net
income) in connection with Customer's usage of the Services. If any
payment due hereunder is not made within thirty (30) days after the
invoice date, late charges of one and one-half percent (1 1/2%) per
month will be computed in next monthly invoice. Late charges shall be
due and payable with respect to such payment.
4. Customer's
Responsibilities.
(a) As between Customer and A.R.S. Day School, Customer is responsible
for: (i) assuring that its authorized users comply with the provisions
of these Terms and that unauthorized persons do not gain access to or
use the Services through user names, passwords, or other identifiers
assigned to Customer pursuant to these Terms; (ii) timely payment of all
charges for usage of the Services applicable to its account whether or
not by authorized users or for authorized purposes; and (iii) performing
its other obligations under these Terms. Customer shall not use the
Services in any way which would be or would assist any third party to be
in violation of any law, these Terms or any Acceptable Use Policy
applicable to the Services. Customer shall not transmit or publish on or
over the Services any information, software or other content which
violates or infringes upon the rights of any others or use the
facilities and capabilities of the Services to conduct any business or
activity or solicit the performance of any activity which is prohibited
by law. Customer shall comply with all applicable laws, rules and
regulations in connection with the Services.
(b) If Customer is obtaining Web Site or Application Hosting or related
Services hereunder, Customer shall provide all relevant
Customer-specific or other graphics, text and other information or other
content desired by Customer to be incorporated into Customer's Web Site
or hosted application in a timely manner, and such other related
information or documentation as is reasonably requested by A.R.S. Day
School for purposes of facilitating A.R.S. Day School' provision of
Services to Customer.
(c) Delay or failure by Customer to fulfill its responsibilities may
result in an adjustment to the costs or the schedule for delivery of the
Services, and shall release A.R.S. Day School from its obligations
hereunder to the extent that A.R.S. Day School is adversely affected by
such Customer delay or failure.
5. A.R.S. Day School' Responsibilities. A.R.S. Day School agrees to the
following responsibilities (subject to the limitations set forth in
these Terms):
(a) A.R.S. Day School will operate the Services in accordance with its
standard policies and procedures and will use commercially reasonable
efforts to make the Services available to Customer as described in these
Terms. A.R.S. Day School will give Customer reasonable notice of
scheduled downtimes for maintenance.
(b) A.R.S. Day School will notify Customer of any changes in the rates
or charges for the Services, as well as any changes in the features of
the Services or in A.R.S. Day School' policies in the operation of the
Services which are reasonably expected to materially affect Customer's
use thereof.
(c) A.R.S. Day School will use a reasonable degree of care to maintain
the secrecy of any of Customer's passwords which are in its possession,
but A.R.S. Day School shall not be liable for any unauthorized access to
or use of the Services or Customer's Network by third parties.
(d) Upon notification from Customer of any interruption or malfunction
in the Services or a need for reconfiguration of Customer's Services,
A.R.S. Day School will use reasonable efforts to cause the same to be
repaired or reconfigured. A.R.S. Day School shall have the right to
access Customer's Services for the purpose of performing such repairs or
reconfiguration or confirming Customer's compliance with its obligations
with respect to the Services.
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6.
Limitation of Warranties and Liability; Disclaimer of Warranties.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S
SOLE RISK. NEITHER A.R.S. Day School NOR ANY OF ITS UNDERLYING
SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR
AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE;
NOR DOES A.R.S. Day School OR ANY OF ITS UNDERLYING SERVICE
PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS
MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE
SERVICE. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE,
OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND
INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS
APPLICABLE TO THIS SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING
EXPRESSLY DISCLAIMED. NEITHER A.R.S. Day School NOR ANY OF ITS
UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY CUSTOMER OR
ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE
SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER EXPRESSLY ACKNOWLEDGES
THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT
OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. CUSTOMER AGREES
THAT CUSTOMER WILL NOT IN ANY WAY HOLD A.R.S. Day School OR ANY OF
ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS RESPONSIBLE FOR ANY SELECTION OR RETENTION OF,
OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE
SERVICE (INCLUDING THOSE WITH WHOM A.R.S. Day School MAY CONTRACT TO
OPERATE VARIOUS AREAS ON THE SERVICE).
7. Remedies of Customer. Customer's sole remedy for any failure or non
performance of the Services (including any associated Equipment,
Software or other materials supplied in connection with the Services)
shall be (i) for A.R.S. Day School to use commercially reasonable
efforts to effectuate an adjustment or repair of the Services and, in
the event such failure or non-performance results in Service downtime
which exceeds the period of time specified in the applicable service
level agreement portion (if any) of any applicable Order or Service
Description, to receive a refund or credit of or against any charges
otherwise payable for the Services for the period of service downtime as
provided for in the applicable service level agreement portion (if any)
of any applicable Order or Service Description, or (ii) if such failure
or non-performance results in Service downtime or degradation so
substantial as to render the Service essentially unavailable to or
unusable by Customer for normal use, to terminate the Services for
default by A.R.S. Day School in the manner provided in these Terms.
Unless specified to the contrary in any applicable service level
agreement portion of any applicable Order or Service Description, the
maximum credit for service downtime or other failure shall not exceed
the total monthly bill to the Customer for the Services for the month in
which such downtime or failure occurs.
8. Disclaimer of Liability. A.R.S. Day School and its underlying service
providers, information providers, licensors, employees, or agents shall
not be responsible for the use made of the Services by Customer, its
authorized users, or any other customer or third party. Without limiting
the generality of the foregoing, A.R.S. Day School and its underlying
service providers, information providers, licensors, employees, or
agents shall not be liable to Customer or any of Customer's users for
any lost profits or other consequential damages, even if such parties
have been advised of the possibility of such damages; any claim or other
action against Customer by any third party (except as set forth in the
section below on infringement); any act or omission of any other entity
furnishing products and services which are used by Customer in
connection with the Services or for failure of any products or services
provided by Customer; or any damages or losses caused by the fault or
negligence of Customer or Customer's failure to perform Customer's
responsibilities.
9. Limitation of Liability. In the event that a court should hold that
the limitations of liabilities or remedies available as set forth in
these Terms, or any portions thereof, are unenforceable for any reason,
or that any of Customer's remedies under these Terms fail of their
essential purpose, Customer expressly agrees that under no circumstances
shall A.R.S. Day School' total liability (nor that of any of its
underlying service providers, information providers, licensors,
employees, or agents) to Customer or any party claiming by, through or
under Customer for any cause whatsoever, and regardless of the form of
action, whether in contract or in tort, including negligence, in the
aggregate, exceed the amount of charges paid by Customer for use of the
Services during the twelve-month period preceding the date such claim
first arose.
10. Indemnification.
(a) If promptly notified in writing of any action brought against
Customer based on a claim that the Services infringe a United States
patent, copyright, trademark, or other intellectual property right,
A.R.S. Day School will defend that action at its expense and will pay
any and all fees, costs or damages that may be finally awarded in that
action and/or a settlement resulting from it (provided that Customer
shall permit A.R.S. Day School to control the defense of such action and
shall not make any compromise, admission of liability or settlement or
take any other action impairing the defense of such claim without A.R.S.
Day School' prior written approval). If a final injunction is obtained
against Customer prohibiting usage of the Services by reason of
infringement of a United States patent, copyright, trademark, or other
intellectual property right, A.R.S. Day School will, at its option,
either: (1) at its expense procure the right for Customer to continue
using the Services or (2) direct Customer to cease using the Services.
In the latter event, the Services shall terminate immediately.
(b) Customer will indemnify and save harmless A.R.S. Day School from and
against all loss, liability, damage, and expense, including all
reasonable counsel fees, due to claims for infringement of patents,
copyright, trademark, or other intellectual property rights, or due to
any other claims or causes of action by third parties of any nature
whatsoever, arising from the use in connection with the Services of
equipment, software or information not provided by A.R.S. Day School, or
otherwise relating to or arising out of Customer's use of the Services.
11. Force Majeure. A.R.S. Day School shall not be responsible for any
delay or failure in delivery or performance of any of its duties
hereunder due to acts of God, acts or omissions of any regulated
telephone network or any other occurrence commonly known as force
majeure, including war, riots, embargoes, strikes, or other concerted
acts of workers (whether of A.R.S. Day School or others), casualties or
accidents, or any other causes or circumstances whether of a similar or
dissimilar nature to the foregoing, which prevent or hinder the delivery
of the Services. A.R.S. Day School may cancel or delay performance
hereunder for so long as such performance is delayed by such occurrence
or occurrences, and in such event A.R.S. Day School shall have no
liability to Customer.
12. Termination and Default.
(a) A.R.S. Day School may, at its sole discretion, terminate any
Customer Order and discontinue Customer's access to and use of the
Services, if: (i) Customer fails to pay any amount within 10 days after
written notice that the same is delinquent; or (ii) Customer breaches
any of the terms, conditions, obligations, or representations contained
in these Terms; or (iii) Customer shall be in default under any other
agreement with A.R.S. Day School; or (iv) Customer becomes the subject
of a voluntary or involuntary bankruptcy, insolvency, reorganization, or
liquidation proceeding, makes an assignment for the benefit of
creditors, or admits in writing its inability to pay debts when due, or
(v) Customer's equipment or use of the Services interferes with the
Services or any other user. In the event of a default by Customer as
specified in this section, A.R.S. Day School shall also be authorized to
retain all payments made hereunder and to recover the full unpaid
balance of the charges applicable to the remainder of the then current
minimum term of Customer's Order for the Services. In addition, if A.R.S.
Day School reasonably determines that the continuation of the Services
has become impractical or unfeasible for any technical, legal,
regulatory or other reason, A.R.S. Day School may terminate the Services
at any time. A.R.S. Day School will, in such event, provide Customer
with at least thirty (30) days prior notice of such termination if
reasonably practical.
(b) If Customer has elected a minimum term for the Services and then
cancels its Services or any portion thereof (or has its Services or any
portion thereof terminated for default as provided above) prior to the
expiration of such minimum term, Customer shall be obligated to pay
A.R.S. Day School a termination charge equal to the amount (if any)
specified in the applicable Order; otherwise the termination charge
shall be equal to 100% of the total monthly charges (other than variable
usage charges) which would have become due for the remainder of the
scheduled minimum term if such cancellation had not occurred.
13. General.
(a) Except as otherwise set forth herein, all notices from either party
to the other shall be delivered either personally or by first-class,
pre-paid U.S. mail. Notice to either party shall be sent to the
respective address as set forth in Customer's order for the Services,
unless written notice of a change of address shall have been previously
given by either party.
(b) Customer may permit its customers or other authorized users to
utilize the Services as part of business operations or services provided
by Customer, subject to these Terms. However, Customer's Services may
not be assigned or transferred by Customer without the prior written
consent of A.R.S. Day School. Any attempt by Customer to assign or
transfer any of the rights, duties, or obligations of Customer with
respect to the Services without A.R.S. Day School' written consent shall
be void, and no assignment or transfer shall release Customer from any
of its obligations with respect to the Services. A.R.S. Day School may
assign, delegate or otherwise transfer its rights or obligations
hereunder, in whole or in part, at any time, but no such assignment
shall release A.R.S. Day School from ultimate responsibility for the
Services hereunder.
(c) No action, regardless of form, arising out of the Services or these
Terms may be brought by either party more than two years after the cause
of action has arisen.
(d) These Terms, including any orders for the Services from Customer
which have been accepted by A.R.S. Day School, set forth the entire
agreement between Customer and A.R.S. Day School respecting the
Services, and supersede any prior written or verbal proposals,
agreements, understandings or other discussions respecting the same.
A.R.S. Day School will not be bound by any provision contained in any
purchase order, confirmation, correspondence or other communication from
Customer which is at variance with, in addition to or conflicts with any
provision of these Terms, unless such variance, addition or conflict is
specifically identified in a written agreement signed by Customer and an
authorized representative of A.R.S. Day School which expressly
references the appropriate provision of these Terms. No agent, employee,
or representative of A.R.S. Day School has any authority to bind A.R.S.
Day School to any affirmation, representation, or warranty unless the
same is specifically set forth in these Terms or in a written agreement
as provided above.
(e) These Terms and the Services shall be governed by the laws of the
State of North Carolina, without regard to its conflicts of laws
provisions. If any provision or provisions hereof shall be held to be
invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not be in any way
affected or impaired thereby.
(f) The remedies of the parties set forth herein are not exclusive
unless expressly so stated herein.
A.R.S. Day School
Terms & Conditions
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