Sites hosted on NativeWeb are bound
by this User Agreement (the 'Agreement')
which governs the terms of the use by Client
of services offered by NativeWeb, Inc. ('Provider').
Client agrees to receive access to
the NativeWeb services according to the following terms and conditions:
This Agreement may be terminated by Client or Provider at any time without
prior notice and without cause. If either party is in default under this
Agreement, then the nondefaulting party may also immediately terminate
the Agreement without prior notice to the other party.
Law. Client will use the services offered by Provider in a manner
consistent with all applicable local, state and federal laws and regulations.
Provider is not responsible for Client's files residing on Provider's servers.
Client is solely responsible for independent backup of data stored on Provider's
Publication of Certain Material. Client shall not knowingly
or unknowingly submit to Provider for publication any of the following
material (including pictures, links, or any other content):
(a) any material which violates
or infringes any copyright, trademark, trade secret, patent, statutory,
common law or other proprietary rights of others;
(b) any material that is libelous or
(c) any material which is or contains
anything obscene or pornographic; or
(d) distribution lists to be used via
unsolicited electronic mail or other mass electronic mailings including
but not limited to: mass-newsgroup postings, SPAM and unsolicited email
sent from your server, or any other service on the Internet, which contains
your domain name or any other domain name on our network
Any violation of the above conditions
will result in termination of Client's account.
Due to the public nature of the Internet,
all material submitted by Client for publication will be considered publicly
accessible. Provider does not screen in advance Client's material submitted
to Provider for publication. Provider's publication of material submitted
by Client does not create any express or implied approval by Provider of
such material, nor does it indicate that such material complies with the
terms of this Agreement.
WARRANTIES. PROVIDER'S SERVICE IS PROVIDED ON AN 'AS IS, AS
PROVIDER SPECIFICALLY DISCLAIMS
ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL PROVIDER BE LIABLE
FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVE N IF
PROVIDER HAS BEEN ADVISED BY CLIENT OF THE POSSIBILITY OF SUCH POTENTIAL
LOSS OR DAMAGE. IF PROVIDER'S SERVICE TO CLIENT IS DISRUPTED OR MALFUNCTIONS
FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME
DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID BY CLIENT TO PROVIDER
FOR SERVICES, DURING THE PERIOD OF DISRUPTION OF MALFUNCTION.
of Liability. Provider is not liable for protection or privacy
of electronic mail or other information transferred through the Internet
or any other network provider or its customers may utilize.
Provider does not represent or
warrant to Client that Client will receive continual and uninterrupted
service during the term of this Agreement. In no event shall Provider be
liable to Client for any damages resulting from or related to any failure
or delay of Provider to provide service under this Agreement if such delays
or failures are due to strikes, riots, fire, inclement weather, acts of
God, theft or vandalism or other causes beyond Provider's control, as defined
by standard practices in the industry. Such failure or delay shall not
constitute a default under this Agreement.
Client agrees to defend, indemnify and hold Provider harmless from and
against any and all claims, losses, liabilities and expenses (including
attorneys' fees) related to or arising out of the services pr ovided by
Provider to Client under this Agreement, including without limitation claims
made by third parties (including customers of Client) related to any false
advertising claims, liability claims for products or services sold by Client,
claims for patent, copyright or trademark infringement, claims due to disruption
or malfunction of services provided hereunder, or for any content submitted
by Client for publication by Provider, but excluding those related to the
negligence of Provider.
Resale of Provider's
Service. If Client acts as a 'reseller' of the services provided
by Provider to Client hereunder, by Client providing similar services to
its customers, then all the terms of this Agreement shall provide to the
resale. Without limiting the foregoing, Client's obligations under Section
9 ('Indemnity') shall apply to any and all claims made against Client and/or
Provider which arise out of the resale of Provider's services.
This Agreement shall be governed by the laws of the State of New York.
Venue for any action hereunder shall be in Syracuse, New York.
of the Parties. The parties intend that no partnership, joint
venture or employee/employer relationship will be created by this Agreement.
If any federal, state or local governmental entity with taxing authority
over the services provided under this Agreement imposes a tax directly
on the services provided by Provider to Client under this Agreement (excluding
any income, business and occupation, capital gain, death or inheritance,
or other indirect taxes), then Provider may pass the direct amount of such
cost on to Client, and Client shall promptly pay such cost.
Any party's failure to insist on compliance or enforcement of any provision
of this Agreement shall not affect its validity or enforceability or constitute
a waiver of future enforcement of that provision or of any other provision
of this Agreement.
If a legal proceeding is commenced to enforce or obtain a declaration of
rights under this Agreement, the prevailing party in such proceeding shall
be entitled to recover its reasonable attorneys' fees and costs incurred
in the proceeding from the nonprevailing party, as well as any reasonable
attorneys' fees and costs that the prevailing party incurred prior to commencing
Provider maintains control and any ownership of any and all IP numbers
and addresses that may be assigned to Client and reserves in its sole discretion
the right to change or remove any and all IP numbers and addresses.