Client agrees to receive access to the NativeWeb services according to the following terms and conditions:

 
1. Term. 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.

 
2. Compliance with Law. Client will use the services offered by Provider in a manner consistent with all applicable local, state and federal laws and regulations.

 
3. File Back-up. 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 servers.

 
4. Prohibition of 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 slanderous;

(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.
 

5. DISCLAIMER OF WARRANTIES. PROVIDER'S SERVICE IS PROVIDED ON AN 'AS IS, AS AVAILABLE' BASIS.


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.
 

6. Limitation/Disclaimer 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.
 

7. Indemnity. 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.

 
8. 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.

 
9. Governing Law/Venue. 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.

 
10. Relationship of the Parties. The parties intend that no partnership, joint venture or employee/employer relationship will be created by this Agreement.

 
11. Taxes. 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.

 
12. Waiver. 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.

 
13. Attorneys' Fees. 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 the proceeding.

 
14. IP Addresses. 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.