1. Order, Acceptance and Service.
a. When Accepted by Global MCS, the Order submitted by Customer creates a
contract between Customer and Global MCS, consisting of the Order, the
applicable Service Description and these Terms of Service. An Order is
“Accepted” by Global MCS when (i) with respect to Orders submitted online,
Global MCS provides Services in response to the Order or bills Customer for
payment and (ii) with respect to Orders reduced to writing and signed on an
approved Global MCS form, when an authorized representative of Global MCS
executes and delivers such form signed by Customer.
b. Global MCS will provide, and Customer will purchase and pay for, the
Services specified in the Order for the service fees specified in the Order and
the applicable Service Description (The “Service Fees”).
c. In connection with any Hosting Services, Customer will not use storage
space in excess of the storage limits established for the Services in the
Service Descriptions, plus any storage space purchased by Customer. If Customer
uses storage space in excess of such amounts, Global MCS may, without limiting
its other rights or remedies, assess Customer with additional fees.
d. In connection with any Hosting Services, if Customer’s actual
bandwidth usage in any month exceeds the limit in the Service Description,
Customer will pay Global MCS such additional fees as may be specified in the
2. Fees, Taxes and Payment.
Customer will pay to Global MCS the Service Fees in the manner set forth in the
Order. Global MCS may increase the Service Fees (i) in the manner permitted in
the Service Description and (ii) at any time on or after expiration of the
Initial Term by providing ten (10) days prior written notice thereof to
Customer. The Service Fees do not include any applicable sales, use, revenue,
excise or other taxes imposed by any taxing authority with respect to the
Services or any software provided hereunder (excluding any tax on Global MCS’s
net income). All such taxes will be added to Global MCS’s invoices for the
Service Fees as separate charges to be paid by Customer. All fees are fully
earned when due and non-refundable when paid. Unless otherwise specified,
invoices for the Service Fees and related charges shall be due and payable
within 30 days after the date of the invoice. If any invoice is not paid within
45 days after the date of the invoice, Global MCS may charge Customer a late fee
of $15 for such invoice; in addition any amounts payable to Global MCS not paid
when due will bear interest at the rate of one and one half percent (1.5%) per
month or the maximum rate permitted by applicable law, whichever is less.
Delinquent accounts may be suspended at Global MCS’s sole discretion. In the
event of a suspension of the Services, upon a reactivation request by Customer,
Customer shall pay Global MCS a reactivation fee in addition to full payment of
the outstanding balance due. Reactivation of services will only be performed
during Global MCS’s normal business hours (Monday through Friday, 9:00 am – 6:00
p.m., Eastern Time, excluding holidays.) If Global MCS collects any payment due
at law or through an attorney at law or under advice there from or through a
collection agency, or if Global MCS prevails in any action to which the Customer
and Global MCS are parties, Customer will pay all costs of collection,
arbitration and litigation, including, without limitation, all court costs and
Global MCS’s reasonable attorneys’ fees. If any Customer payment is returned for
insufficient funds Global MCS will impose a processing charge of $25. If two or
more Customer payments are returned for insufficient funds in any 6 month
period, Global MCS in its sole discretion may require alternative payment
methods for all future Customer payments including, without limitation, credit
card, money order, or cashier’s check.
3. Term and Termination.
a. Hosting Services will commence on the Effective Date indicated in the
Order and continue for the duration of the Initial Term. Thereafter, the Order
will automatically renew for successive one month periods unless the Order is
earlier terminated in accordance with its terms or either party gives written
notice to the other party of non-renewal at least 30 days prior to expiration of
the then-current term.
b. Either party may terminate this Agreement immediately upon the
occurrence of any one or more of the following events: (i) the other party fails
to pay when due any amounts required to be paid under this Agreement; (ii) the
other party breaches any material term or provision of this Agreement (other
than a breach described in subsection (i) above), and if capable of cure, such
breach remains uncured 30 days after the non-breaching party gives written
notice thereof to the breaching party; or (iii) the other party becomes
insolvent, makes an assignment for the benefit of its creditors, institutes or
becomes subject to any proceeding under any bankruptcy or similar laws for the
relief of debtors, or seeks the appointment of, or becomes subject to the
appoint of, any trustee or receiver for all or any portion of such party’s
c. Global MCS may terminate this Agreement (i) if the Services are
prohibited by applicable law, or become impractical or unfeasible for any
technical, legal or regulatory reason, by giving Customer as much prior notice
as reasonably practicable or (ii) immediately by giving written notice to
Customer, if Global MCS determines in good faith that Customer’s use of the
Customer Web site or the Customer Content violates the Acceptable Use Policy.
d. Upon termination of this Agreement for any cause or reason whatsoever,
neither party shall have any further rights or obligations under this Agreement,
except as expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10,
11, 13 and 15 of this Agreement shall survive the expiration or termination of
this Agreement for any cause or reason whatsoever, and, notwithstanding the
expiration or termination of this Agreement, the parties shall each remain
liable to the other for any indebtedness or other liability theretofore arising
under this Agreement. Termination of this Agreement and retention of pre-paid
fees and charges shall be in addition to, and not be in lieu of, any other legal
or equitable rights or remedies to which Global MCS may be entitled.
e. With respect to Non-Prepaid Plans, within 30 days after the
termination of this Agreement, Customer will pay the Termination Charge to
Global MCS unless (i) Global MCS terminated the Order under Section 3(c) or (ii)
Customer terminated the Order under Section 3(b). With respect to Prepaid Plans,
Customer will pay the Termination Charge as provided in the Service Description.
The parties agree that the Termination Charge constitutes consideration for
Global MCS’s time, effort and expense in preparing and reserving the capacity to
perform its obligations hereunder, as actual damages are difficult to ascertain.
If Customer terminates the Order in accordance with Section 3(b), or if Global
MCS terminates the Order under Sections 3(c)(i) or 12(c), Global MCS shall
return to Customer, and Customer shall accept, as Customer’s sole and exclusive
remedy for Global MCS’s breach of the Order, any Service Fees paid in advance by
Customer hereunder attributable to Services not yet rendered as of the date of
4. Customer’s Representations and Warranties.
Customer hereby represents and warrants to Global MCS, and agrees
that during the Term Customer will ensure that: (a) Customer is the owner or
valid licensee of the Customer Content and each element thereof, and Customer
has secured all necessary licenses, consents, permissions, waivers and releases
for the use of the Customer Content and each element thereof, including without
limitation, all trademarks, logos, names and likenesses contained therein,
without any obligation by Global MCS to pay any fees, residuals, guild payments
or other compensation of any kind to any Person; (b) Customer’s use, publication
and display of the Customer Content will not infringe any copyright, patent,
trademark, trade secret or other proprietary or intellectual property right of
any Person, or constitute a defamation, invasion of privacy or violation of any
right of publicity or any other right of any Person, including, without
limitation, any contractual, statutory or common law right or any “moral right”
or similar right however denominated; (c) Customer will comply with all
applicable laws, rules and regulations regarding the Customer Content and the
Customer Web site and will use the Customer Web site only for lawful purposes;
(d) Customer has used its best efforts to ensure that the Customer Content is
and will at all times remain free of all computer viruses, worms, trojan horses
and other malicious code; and (e) Customer will use the Services only for
business purposes and not for any family, household or personal use.
5. License to Global MCS.
Customer hereby grants to Global MCS a non-exclusive, royalty-free,
worldwide right and license during the Term to do the following to the extent
necessary in the performance of Services under the Order: (a) digitize, convert,
install, upload, select, order, arrange, compile, combine, synchronize, use,
reproduce, store, process, retrieve, transmit, distribute, publish, publicly
display, publicly perform and hyperlink the Customer Content; and (b) make
archival or back-up copies of the Customer Content and the Customer Web site.
Except for the rights expressly granted above, Global MCS is not acquiring any
right, title or interest in or to the Customer Content, all of which shall
remain solely with Customer.
6. Global MCS’s Acceptable Use Policy.
Customer will abide by, and utilize the Services and the Customer Web
site only in accordance with, the Acceptable Use Policy (the “Acceptable Use
Policy”) that Global MCS posts on its Web site, as such Acceptable Use Policy
may be changed by Global MCS from time to time. The Acceptable Use Policy is
hereby incorporated herein and made a part hereof by this reference. Customer
shall impose the Acceptable Use Policy on its customers and End Users to the
extent necessary to ensure their compliance. Customer shall familiarize itself
with the Acceptable Use Policy and periodically access Global MCS’s Web site to
determine if Global MCS has made any changes thereto.
7. Customer’s Responsibilities.
a. Customer is solely responsible for the quality, performance
and all other aspects of the Customer Content and the goods or services provided
through the Customer Web site.
b. Customer will cooperate fully with Global MCS in connection with
Global MCS’s performance of the Services. Customer must provide any equipment or
software that may be necessary for Customer to use the Services. Delays in
Customer’s performance of its obligations under this Agreement will extend the
time for Global MCS’s performance of its obligations that depend on Customer’s
performance on a day for day basis. Customer will notify Global MCS of any
change in Customer’s mailing address, telephone, e-mail or other contact
b. Customer assumes full responsibility for providing End Users with any
required disclosure or explanation of the various features of the Customer Web
site and any goods or services described therein, as well as any rules, terms or
conditions of use.
c. Customer will provide Global MCS with a registered domain name for the
Customer Web site, or, upon Customer’s request and subject to Global MCS’s
Domain Name Registration Terms and Conditions (http://www.Global MCS.com/legal/domain/default.asp),
tthe provisions of which are incorporated herein by this reference, Global MCS
will register an Internet domain name on behalf of Customer.
d. Because the Hosting Services permit Customer to electronically
transmit or upload content directly to the Customer Web site, Customer shall be
fully responsible for uploading all content to the Customer Web site and
supplementing, modifying and updating the Customer Web site. Customer is also
responsible for ensuring that the Customer Content and all aspects of the
Customer Web site are compatible with the hardware and software used by Global
MCS to provide the Hosting Services, as the same may be changed by Global MCS
from time to time. Specifications for the hardware and software used by Global
MCS to provide the Hosting Services will be available on Global MCS’s Web site.
Customer shall periodically access Global MCS’s Web site to determine if Global
MCS has made any changes thereto. Global MCS shall not be responsible for any
damages to the Customer Content, the Customer Web site or other damages or any
malfunctions or service interruptions caused by any failure of the Customer
Content or any aspect of the Customer Web site to be compatible with the
hardware and software used by Global MCS to provide the Hosting Services.
e. Unless the applicable Service Description provides otherwise, Customer
is solely responsible for making back-up copies of the Customer Web site and
8. Global MCS Intellectual Property.
a. Global MCS hereby grants to Customer a non-exclusive,
non-transferable, royalty-free license, exercisable solely during the term of
this Agreement, to use applicable Global MCS Technology solely for the purpose
of accessing and using the Services. Customer may not use the Global MCS
Technology for any purpose other than accessing and using the Services. Except
for the rights expressly granted above, this Agreement does not transfer from
Global MCS to Customer any Global MCS Technology, and all rights, titles and
interests in and to the Global MCS Technology shall remain solely with Global
MCS. Customer shall not, directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or other trade secrets
from any of the Global MCS Technology.
b. Global MCS’s trademarks, tradenames, service marks, logos, other names
and marks, and related product and service names, design marks and slogans are
the sole and exclusive property of Global MCS. Customer may not use any of the
foregoing in any advertising, publicity or in any other commercial manner
without the prior written consent of Global MCS. Global MCS shall maintain and
control ownership of all Internet protocol numbers and addresses that may be
assigned by Global MCS to Customer. Global MCS may, in its sole discretion,
change or remove any and all such Internet protocol numbers and addresses.
c. Any feedback, data, answers, questions, comments, suggestions, ideas
or the like which Customer sends to Global MCS relating to the Services will be
treated as being non-confidential and non-proprietary. Global MCS may use,
disclose or publish any ideas, concepts, know-how or techniques contained in
such information for any purpose whatsoever.
9. Limited Warranty.
a. Global MCS represents and warrants to Customer that the
Services will be performed (i) in a manner consistent with industry standards
reasonably applicable to the performance thereof; (ii) at least at the same
level of service as provided by Global MCS generally to its other customers for
the same services; and (iii) in compliance in all material respects with the
applicable Service Descriptions. Customer will be deemed to have accepted such
Services unless Customer notifies Global MCS within 30 days after performance of
any Services of any breach of the foregoing warranties. Customer’s sole and
exclusive remedy, and Global MCS’s sole obligation, for breach of the foregoing
warranties shall be for Global MCS, at its option, to re-perform the defective
Services at no cost to Customer, or, in the event of interruptions to the
Services caused by a breach of the foregoing warranties, issue Customer a credit
in an amount equal to the current monthly Service Fees pro rated by the number
of hours in which the Services have been interrupted. Global MCS may provision
the Services from any of its data centers and may from time to time re-provision
the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or
defects in the Services (i) caused by factors outside of Global MCS’s reasonable
control; (ii) that resulted from any actions or inactions of Customer or any
third parties; or (iii) that resulted from Customer’s equipment or any
third-party equipment not within the sole control of Global MCS.
c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, Global MCS MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND Global MCS HEREBY EXPRESSLY
DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE
PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR
WARRANTY WHATSOEVER. Global MCS DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10. Limitation of Liability.
a. IN NO EVENT WILL Global MCS’S LIABILITY IN CONNECTION WITH
THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY
FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE,
EXCEED THE AGGREGATE SERVICE FEES PAID TO Global MCS BY CUSTOMER DURING THE
12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. Global MCS CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY
PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED
VIA THE INTERNET. Global MCS WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO,
OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT
DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE
IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR
REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS,
LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER
FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF
OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR
(EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY
BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section 10 apply to all causes of
action in the aggregate, whether based in contract, tort or any other legal
theory (including strict liability), other than claims based on fraud or willful
misconduct. The limitations contained in Section 10(c) shall not apply to
liability arising on account of a party’s breach of Section 13 or to Customer’s
indemnification obligations under Section 11.
11. Indemnification of Global MCS.
Customer shall defend, indemnify and hold harmless Global MCS, its
affiliates and their respective present, former and future officers, directors,
employees and agents, and their respective heirs, legal representatives,
successors and assigns (collectively the “Global MCS Indemnitees”), from and
against any and all losses, damages, costs, liabilities and expenses (including,
without limitation, amounts paid in settlement and reasonable attorneys’ fees)
which any of the Global MCS Indemnitees may suffer, incur or sustain resulting
from or arising out of (i) Customer’s breach of any representation, warranty, or
covenant contained in the Agreement, (ii) the Customer Content, the Customer Web
site or any End User’s use of the Customer Content or the Customer Web site,
(iii) violation by Customer or any of its officers, directors, employees or
agents of the Acceptable Use Policy or any applicable law, (iv) claims or
actions of third parties alleging misappropriation of trade secrets or
infringement of patents, copyrights, trademarks or other intellectual property
rights arising from the use, display or publication of Customer’s domain names,
the Customer Web site, the Customer Content, or the use of the Services in
combination with hardware, software or content not provided by Global MCS, (v)
claims or actions by third parties relating to or arising out of Customer’s use
of the Services, and (vi) any failure of the Customer Content or any aspect of
the Customer Web site to be compatible with the hardware or software used by
Global MCS to provide the Services, including any damage to Global MCS’s servers
or other hardware caused thereby.
12. Indemnification of Customer.
a. Subject to Section 10, Global MCS shall, at its own
expense, indemnify, defend and hold Customer harmless from any claim or suit
alleging that the Services infringe any United States patent, copyright or
trademark existing on the Effective Date, or that Global MCS has knowingly
misappropriated any trade secret or other intellectual property right of any
other Person, including any losses, damages or expenses arising from any such
claim or suit. Customer agrees to cooperate with and assist Global MCS in the
defense or settlement of any such claim or suit. Customer shall be reimbursed
for all reasonable out-of-pocket expenses incurred in providing any cooperation
or assistance requested by Global MCS, but Global MCS will not be liable for any
costs or expenses incurred without its prior written authorization.
b. Promptly after receipt by Customer of a threat of any claim or suit,
or a notice of the commencement or filing of any claim or suit, against which
Customer may be indemnified hereunder, Customer shall give written notice
thereof to Global MCS, provided that failure to give or delay in giving such
notice to Global MCS shall not relieve Global MCS of any liability it may have
to Customer hereunder, except to the extent that the defense of such claim or
suit is prejudiced thereby. Global MCS shall have sole control of the defense,
and of all negotiations for settlement, of such claim or suit. Subject to the
foregoing, Customer may participate in the defense of any such claim or suit at
Customer’s own expense.
c. If an injunction, decree or judgment is, or Global MCS believes in its
sole discretion is likely to be, entered providing that Customer may not use the
Services as contemplated in this Agreement without violating the intellectual
property rights of a third party, Global MCS may, at its sole option and
expense, either (i) procure for Customer the right to use the Services or
affected part thereof as provided in this Agreement; (ii) replace the Services
or affected part thereof with other non-infringing services or modify the
Services or affected part thereof so as to be non-infringing; or (iii) terminate
this Agreement upon written notice to Customer.
d. Notwithstanding Section 12(a), Global MCS assumes no liability for
infringement claims arising from (i) use of the Services with third-party
products or services where the third-party products or services cause the
infringement, (ii) any modification of the Services not authorized by Global MCS
in writing, (iii) the Customer Content, the Customer Web site or any content,
data or information provided or supplied by an End User, or (iv) Customer’s use
of any third-party software provided hereunder. THE FOREGOING DEFENSE AND
INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF Global
MCS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED
13. Confidentiality; Non-Solicitation.
a. Each party will not, without the prior written consent of
the other party, use or disclose to any Person any Proprietary Information of
the other party disclosed or made available to it, except for use of such
Proprietary Information as required in connection with the performance of its
obligations or use of the Services hereunder. Subject to Section 13(b), each
party will (i) treat the Proprietary Information of the other party as secret
and confidential, (ii) limit access to the Proprietary Information of the party
to those of its employees who require it in order to effectuate the purposes of
this Agreement, and (iii) not disclose the Proprietary Information of the other
party to any other Person without the prior written consent of the other party.
b. Notwithstanding Section 13(a), the following shall not be considered
Proprietary Information: (i) any information that the receiving party can
demonstrate by written documentation was within its legitimate possession prior
to the time of disclosure by the disclosing party; (ii) any information that was
in the public domain prior to disclosure by the disclosing party as evidenced by
documents that were published prior to such disclosure; (iii) any information
that, after disclosure by the disclosing party, comes into the public domain
through no fault of the receiving party, (iv) any information that is disclosed
to the receiving party without restriction by a third party who has legitimate
possession thereof and the legal right to make such disclosure; or (v) any
information that, two years after expiration or termination of this Agreement,
does not constitute a trade secret under applicable law.
c. Each party acknowledges that disclosure of any aspect of the
Proprietary Information of the other party shall immediately give rise to
continuing irreparable injury to the other party inadequately compensable in
damages at law, and, without prejudice to any other remedy available to the
other party, shall entitle the other party to injunctive or other equitable
relief. Upon expiration or termination of this Agreement for any reason, each
party shall promptly return to the other party all Proprietary Information of
the other party (including all copies thereof) in its possession or control.
d. During the term of this Agreement and for two years following
expiration or termination of this Agreement, Customer will not, directly or
indirectly, solicit or recruit the services of any employee of Global MCS
performing services under this Agreement, while such employee is employed by
Global MCS and for a period of six months after such employee has left the
employment of Global MCS.
14. Optional Services. In connection with any Optional
a. Customer must provide Global MCS with any information,
login identifications, passwords or other information or access to facilities
that Global MCS may reasonably require to provide the Optional Services Global
MCS will have no responsibility for any delays or increased costs or expenses
associated with Customer’s failure to provide any of such information. If
Customer does not provide any such information or access requested by Global MCS
within fifteen (15) days of Global MCS’s request therefor, Global MCS may
terminate the Order and retain any Service Fees paid.
b. If Customer requested that Global MCS perform the Optional Services by
a particular deadline or that Global MCS achieve some particular result or
outcome, Global MCS will use commercially reasonable best efforts to perform the
Services by any such deadline and achieve the result requested by Customer;
provided, however, that (i) Global MCS’s ability to perform the Services is
subject to Customer’s provision of information and access as provided above and
(ii) Global MCS has no liability or obligation to complete the Services by any
deadline or achieve any particular outcome or result
c. If Customer wishes to convey documents or files to Global MCS,
Customer should deliver to Global MCS a copy or duplicate of such documents or
files and not the original copy. Global MCS will not return to Customer any
documents or files conveyed to Global MCS.
d. Global MCS will have no liability or responsibility for any damage,
loss of data, loss of use or other loss occurring in connection with Global
MCS’s provision of Optional Services requested by Customer.
a. Independent Contractor. Global MCS and Customer are
independent contractors and nothing contained in this Agreement places Global
MCS and Customer in the relationship of principal and agent, master and servant,
partners or joint venturers. Neither party has, expressly or by implication, or
may represent itself as having, any authority to make contracts or enter into
any agreements in the name of the other party, or to obligate or bind the other
party in any manner whatsoever.
b. Governing Law; Jurisdiction. Any controversy or claim arising out of
or relating to this Agreement, the formation of this Agreement or the breach of
this Agreement, including any claim based upon arising from an alleged tort,
shall be governed by the substantive laws of the State of Georgia, except that
all arbitration and related proceedings conducted pursuant to Section 15(c)
below, including without limitation confirmation proceedings, shall be governed
by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. . The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS
NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 15(C) BELOW MUST BE
BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA,
AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM)
IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
c. Mandatory Arbitration. Notwithstanding Section 15(b) above, each party
agrees that any dispute between the parties arising out of this Agreement or in
any manner relating to the Services must be submitted by the parties to
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as administered by Resolutions Resources Corp. of
Atlanta, Georgia (or such other recognized provider of arbitration services
agreed upon by both parties) before a single arbitrator, appointed in accordance
with such rules. Any such arbitrator must render a reasoned opinion in writing
only where the amount in dispute exceeds $100,000. Judgment upon the award may
be entered in any court having jurisdiction thereof. Any such arbitration will
be held in Atlanta, Georgia. Any action filed by either party in any court in
violation of this Section should be dismissed pursuant to this Section.
d. Headings. The headings herein are for convenience only and are not
part of this Agreement.
e. Entire Agreement; Amendments. This Agreement, including documents
incorporated herein by reference, supersedes all prior discussions, negotiations
and agreements between the parties with respect to the subject matter hereof,
and this Agreement constitutes the sole and entire agreement between the parties
with respect to the matters covered hereby. In case of a conflict between this
Agreement and any purchase order, service order, work order, confirmation,
correspondence or other communication of Customer or Global MCS, the terms and
conditions of this Agreement shall control. No additional terms or conditions
relating to the subject matter of this Agreement shall be effective unless
approved in writing by any authorized representative of Customer and Global MCS.
This Agreement may not be modified or amended except by another agreement in
writing executed by the parties hereto; provided, however, that these Terms of
Service may be modified from time to time by Global MCS in its sole discretion,
which modifications will be effective upon posting to Global MCS’s web site.
f. Severability. All rights and restrictions contained in this Agreement
may be exercised and shall be applicable and binding only to the extent that
they do not violate any applicable laws and are intended to be limited to the
extent necessary so that they will not render this Agreement illegal, invalid or
unenforceable. If any provision or portion of any provision of this Agreement
shall be held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the remaining provisions
or portions thereof shall constitute their agreement with respect to the subject
matter hereof, and all such remaining provisions or portions thereof shall
remain in full force and effect.
g. Notices. All notices and demands required or contemplated hereunder by
one party to the other shall be in writing and shall be deemed to have been duly
made and given upon date of delivery if delivered in person or by an overnight
delivery or postal service, upon receipt if delivered by facsimile the receipt
of which is confirmed by the recipient, or upon the expiration of five days
after the date of posting if mailed by certified mail, postage prepaid, to the
addresses or facsimile numbers set forth below the parties’ signatures. Either
party may change its address or facsimile number for purposes of this Agreement
by notice in writing to the other party as provided herein. Global MCS may give
written notice to Customer via e-mail to the Customer’s e-mail address as
maintained in Global MCS’s billing records.
h. Waiver. No failure or delay by any party hereto to exercise any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right or remedy. No
express waiver or assent by any party hereto to any breach of or default in any
term or condition of this Agreement shall constitute a waiver of or an assent to
any succeeding breach of or default in the same or any other term or condition
i. Assignment; Successors. Customer may not assign or transfer this
Agreement, or any of its rights or obligations hereunder, without the prior
written consent of Global MCS. Any attempted assignment in violation of the
foregoing provision shall be null and void and of no force or effect whatsoever.
Global MCS may assign its rights and obligations under this Agreement, and may
engage subcontractors or agents in performing its duties and exercising its
rights hereunder, without the consent of Customer. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
j. Limitation of Actions. No action, regardless of form, arising by
reason of or in connection with this Agreement may be brought by either party
more than one year after the cause of action has arisen.
k. Counterparts. If this Agreement is signed manually, it may be executed
in any number of counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same instrument. If this
Agreement is signed electronically, Global MCS’s records of such execution shall
be presumed accurate unless proven otherwise.
l. Force Majeure. Neither party is liable for any default or delay in the
performance of any of its obligations under this Agreement (other than failure
to make payments when due) if such default or delay is caused, directly or
indirectly, by forces beyond such party’s reasonable control, including, without
limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or
terrorism, interruptions of transportation or communications, supply shortages
or the failure of any third party to perform any commitment relative to the
production or delivery of any equipment or material required for such party to
perform its obligations hereunder.
m. No Third-Party Beneficiaries. Except as otherwise expressly provided
in this Agreement, nothing in this Agreement is intended, nor shall anything
herein be construed to confer any rights, legal or equitable, in any Person
other than the parties hereto and their respective successors and permitted
assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that
Microsoft, and any supplier of third-party supplier that is identified as a
third-party beneficiary in the Service Description, is an intended third-party
beneficiary of the provisions set forth in this Agreement as they relate
specifically to its products or services and shall have the right to enforce
directly the terms and conditions of this Agreement with respect to its products
or services against Customer as if it were a party to this Agreement.
n. Government Regulations. Customer may not export, re-export, transfer
or make available, whether directly or indirectly, any regulated item or
information to anyone outside the United States in connection with this
Agreement without first complying with all export control laws and regulations
which may be imposed by the United States government and any country or
organization of nations within whose jurisdiction Customer operates or does
o. Marketing. Customer agrees that during the term of this Agreement
Global MCS may publicly refer to Customer, orally and in writing, as a customer
of Global MCS. Any other public reference to Customer by Global MCS requires the
written consent of Customer.
p. Telephone Monitoring. To ensure Global MCS’s customers receive quality
service, Global MCS randomly selects phone calls for monitoring. These calls,
between Global MCS’s customers and employees, are evaluated by supervisors. This
is to guarantee that prompt, consistent assistance and accurate information is
delivered in a professional manner. Global MCS has been properly licensed by the
Georgia Public Service Commission to use such service observing equipment.
For purposes of this Agreement, the following terms have the meanings specified
a. “Agreement” means each contract created between Global MCS and
Customer for the provision of Services consisting of an Order, the applicable
Service Description and these Terms of Service.
b. “Customer Content” means all data, graphics, text, names, marks,
logos, hypertext links to other Web sites and other information incorporated in,
transmitted through or published or displayed on the Customer Web site.
c. “Customer Web site” means Customer’s site on the World Wide Web
portion of the Internet that Global MCS hosts under this Agreement.
d. “End User” means any Person who accesses or uses the Customer Web site
via the Internet.
e. “Global MCS Technology” means Global MCS’s proprietary technology,
including, without limitation, Global MCS services, software tools, hardware
designs, algorithms, software (in source code and object code forms), user
interface designs, architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how, trade secrets and any
related intellectual property rights throughout the world (whether owned by
Global MCS or licensed to Global MCS from a third party), and also including any
derivatives, improvements, enhancements, updates, modifications or extensions of
Global MCS Technology conceived, reduced to practice or developed during the
term of this Agreement by either party.
f. “Person” means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated association or
organization, or government or any agency or political subdivision thereof.
g. “Proprietary Information” means all technical, business and other
information of a party (i) that is not generally known to the public, (ii) that
derives value, economic or otherwise, from not being generally known to the
public or to other Persons who can obtain value from its disclosure or use, and
(iii) which information is subject to efforts that are reasonable under the
circumstances to maintain the secrecy thereof.
h. “Order” means the Order submitted by the Customer to Global MCS for Services,
whether such Order is submitted online through Global MCS’s Web site or on a
written Order form.
i. “Prepaid Plan” means Hosting Service provided by Global MCS to
Customer where the Order provides that the Customer must pay for the Hosting
Service in advance for the Initial Term. “Non-Prepaid Plan” means any Hosting
Service provided by Global MCS to Customer that is not a Prepaid Plan.
j. “Termination Charge” means, with respect to Non-Prepaid Customers
only, as of any date of calculation, an amount equal to one hundred percent
(100%) of the fees that would become due over the balance of the then-current
k. “Terms of Service” means these Terms of Service, as the same may be modified,
altered or amended from time to time by Global MCS.
l. “Service” means either Hosting Service or Optional Service. “Hosting
Service” means the Service provided by Global MCS in response to an Order
whereby Global MCS provides the Customer with specified connectivity, storage
space and bandwidth for the hosting of a Customer Web site as more particularly
described in the applicable Service Description. “Optional Service” means any
additional Service (other than Hosting Service) Global MCS may provide in
response to an Order, as more particularly described in the applicable Service
m. “Service Description” means the applicable documents made available by
Global MCS to Customer to describe the applicable Services at the time the Order
is accepted by Global MCS.
n. “Term” means the duration of any Agreement between Global MCS and
Customer. With respect to Hosting Services, the “Initial Term” is the initial
term specified in the Order and the Term continues beyond the Initial Term for
any renewal period as specified in Section 3. . With respect to Optional
Services, the “Term” begins when Global MCS accepts the Order and ends on the
first to occur of (i) Global MCS’s completion of performance, or (ii) the
earlier termination of the Order in any manner permitted by these Terms of
Adopted January, 2005