General Terms & Conditions
GOVERNING PROVISIONS.
A. These General Gottathink, LLC Terms and Conditions govern Customer's access to and use of any service ("Service") provided to it by Gottathink, LLC.
B. The Gottathink, LLC Service Terms and Conditions for each specific Service Customer obtains from Gottathink, LLC govern Customer's access to and use of the specific Service(s) provided to Customer by Gottathink, LLC.
PAYMENT FOR SERVICES.
A. INITIAL PAYMENT. Charges for a Service shall commence to accrue on the Service Commencement Date for the Service and shall be prorated in the event the first month of service is not a full calendar month. Payment of all non-recurring charges indicated in the Contract for Service, including but not limited to installation costs and the monthly recurring charges for the first full calendar month of the Initial Term and any prorated partial month, shall be made in full on or before the Service Commencement Date.
B. RECURRING CHARGES. Monthly recurring charges incurred after the first full calendar month of the Initial Term will be invoiced to Customer in advance at the beginning of the month for which the charges accrue. Additional charges, including usage-based charges, late fees, accrued interest, and early termination fees, shall be invoiced in arrears. Payment of all invoiced amounts is due on the twenty-fifth (25) day after the date of the invoice. Gottathink, LLC's failure to receive payment within thirty (30) days of the date of an invoice shall constitute a material breach by Customer of the Contract for Service.
C. TAXES. Customer shall be liable for and shall pay all local, state, federal and non-United States sales taxes and other taxes and charges arising from Gottathink, LLC's provision of Services. Customer shall pay and be solely responsible for all taxes, fees and charges levied directly upon it.
D. BILLING DISPUTES. If Customer believes a Gottathink, LLC bill contains an error, Customer shall pay timely the undisputed portion of the bill and notify Gottathink, LLC of the suspected error within fifteen (15) days of the date of the disputed bill. Gottathink, LLC shall have no obligation to make any billing adjustment or refund for any errors for which Customer has not provided Gottathink, LLC timely notice. Disputed charges shall not accrue a service charge pending resolution of Gottathink, LLC of the dispute.
E. LATE CHARGES AND COLLECTION COSTS. Charges not in dispute which are not paid by Customer within thirty (30) days of Gottathink, LLC's invoice for a Service shall accrue a late fee which shall accrue daily at the rate of one and one-half percent (1 1/2%) per month until paid. Customer shall pay Gottathink, LLC's reasonable costs of collection, including reasonable attorneys' fees, incurred by Gottathink, LLC in collecting any charges payable to it by Customer.
TERM AND TERMINATION OF A CONTRACT FOR SERVICE.
A. TERM. The initial term of the Contract for Service shall be for the period specified in the Contract for Service and shall commence on the Service Commencement Date. If the Contract for Service is amended to upgrade a Service, the term of the amended agreement for the upgraded Service shall be for one year commencing on the effective date of the amendment. Upon termination of its term, the Contract for Service shall automatically renew for additional one-year terms unless written notice is provided by either party 30 days prior to the completion of a pending term.
B. TERMINATION. Either Customer or Gottathink, LLC may terminate a Contract For Service for cause if: (1) the other party breaches a material term or condition of the Contract for Service and fails to cure the breach within thirty (30) days after receipt of written notice of the breach, except in the case of a default by Customer in payment for a Service, which must be cured within five (5) days after written notice by Gottathink, LLC of the default; (2) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (3) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors if such petition or proceeding is not dismissed within sixty (60) days of filing. Customer also may terminate the Contract for Service in accordance with the terms set forth in a Service Level Agreement set forth in a Service Terms and Conditions.
C. EARLY TERMINATION FEE. If Customer terminates a Contract for Service prior to the completion of the Initial Term or any subsequent renewal term, Customer shall pay Gottathink, LLC an early termination fee equal to fifty percent (50%) of the monthly service fee for the remaining portion of the Initial Term or renewal term.
D. EFFECT OF TERMINATION. Upon termination of a Contract for Service by either party for any reason, Gottathink, LLC shall cease providing the Service affected by the termination.
E. RESUMPTION OF SERVICE AFTER TERMINATION. Gottathink, LLC will promptly notify Customer of Gottathink, LLC's termination of a Service due to Customer's breach of a Contract for Service and the reason the Service was terminated. If Customer requests Gottathink, LLC to resume providing the Service, Gottathink, LLC may, in its sole discretion and on such terms as Gottathink, LLC may specify, agree to resume providing the Service. If Gottathink, LLC agrees to resume providing the Service, Customer shall pay in advance a non-refundable fee in the amount if Fifty and 00/100 Dollars ($50.00) or Fifty Percent (50%) of the Customer's monthly recurring charge for the affected Service, whichever is greater.
CONTRACT PRICE ADJUSTMENT UPON RENEWAL.
Gottathink, LLC may at any time after the initial term, increase or decrease any or all fees payable under this agreement, for each renewal term.
PROHIBITED USE OF SERVICES.
A. Customer shall not use any Service in a manner which Gottathink, LLC reasonably determines may adversely affect Gottathink, LLC's systems, other Gottathink, LLC customers, the integrity and operation of Gottathink, LLC's business, or Gottathink, LLC's ability to provide Services to other Gottathink, LLC customers.
B. Gottathink, LLC has the right, but not the obligation, to monitor any activity and content associated with the use of the Services. Gottathink, LLC may cooperate with law enforcement agencies in any investigation related to the use of a Gottathink, LLC Service and investigate any complaint or reported violation of law or Gottathink, LLC's policies and take any action it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of a Service, removal of materials on a Gottathink, LLC-hosted web site, and disclosure of information to law enforcement agencies, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content, in response to requests Gottathink, LLC reasonably deems to be legally enforceable.
C. Gottathink, LLC has the right to terminate any Service without notification if Gottathink, LLC determines to its reasonable satisfaction that Customer has used the Service to engage in an activity prohibited by Gottathink, LLC.
EMERGENCY AND SCHEDULED MAINTENANCE.
Gottathink, LLC will provide reasonable notice by email to Customer of scheduled maintenance affecting the Services and will use reasonable efforts to notify Customer of emergency maintenance affecting the Services, provided that Gottathink, LLC may, if reasonably necessary, perform emergency maintenance at any time, without advance notice to Customer. During scheduled and emergency maintenance periods, Gottathink, LLC's Services may be unavailable to Customer.
LIMITATIONS ON Gottathink, LLC'S LIABILITY TO CUSTOMER.
A. Gottathink, LLC PROVIDES THE SERVICES "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN WRITING IN THIS SERVICE AGREEMENT. Gottathink, LLC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING ANY WARRANTIES THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS.
B. IN NO EVENT SHALL Gottathink, LLC BE LIABLE OR RESPONSIBLE TO CUSTOMER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
C. IN NO EVENT SHALL Gottathink, LLC'S LIABILITY TO ANY CUSTOMER OR ANY THIRD PARTY IN ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES CUSTOMER ACTUALLY PAID TO Gottathink, LLC FOR SERVICES IN THE ONE MONTH PERIOD DIRECTLY PRIOR TO THE ACTION GIVING RISE TO ALLEGED LIABILITY.
D. Gottathink, LLC does not and cannot control the transmission of data outside of Gottathink, LLC's colocation networks. Accordingly, Gottathink, LLC disclaims any and all liability resulting from or related to any disruption of any Service or the inability of Customer to utilize any Service except as may be expressly provided in a Gottathink, LLC Service Level Agreement applicable to a specific Service.
E. Gottathink, LLC makes no warranty and disclaims any and all liability with respect to: (i) software used by Gottathink, LLC to provide the Services; (ii) the accuracy, completeness, currency, error-free nature, or fitness for any particular purpose of any data or services accessed by Customer through the Services; and (iii) damages or inconvenience which may be caused by necessary or scheduled maintenance to Gottathink, LLC's systems.
F. Any equipment which is accessible through the Internet is vulnerable to damage caused by malicious users of the Internet, malfunctions of the Internet, or otherwise. Gottathink, LLC shall have no liability for any damage to or loss of Customer equipment resulting from any cause other than the negligence or willful misconduct of Gottathink, LLC or its authorized agents. To the extent Gottathink, LLC is liable for any damage to or loss of Customer equipment caused by the gross negligence or willful misconduct of Gottathink, LLC or its authorized agent, such liability shall be limited solely to the then-current replacement value of the equipment, excluding the value of any lost data, software or firmware.
G. Gottathink, LLC shall not be in default under any provision of the Contract for Service or be liable for any delay, failure of performance or interruption of any Service resulting, directly or indirectly, from causes beyond Gottathink, LLC's reasonable control, including but not limited to any of the following: acts of God; fire or explosion; vandalism; cable cut; weather conditions; action of any governmental or military authority; national emergency; insurrection; riot; war; acts of terrorism; strikes; lockouts; work stoppages or other labor difficulties; supplier failure; shortage; or telecommunication or other Internet provider failure.
H. Gottathink, LLC's websites may contain links to external websites not under Gottathink, LLC's control that may be useful to you. Gottathink, LLC is not responsible for the privacy practices or the content of these external websites. I. Every person granted access to the Facilities by or on behalf of Customer does so at his or her own risk. Gottathink, LLC assumes no liability whatsoever for any harm to such persons resulting from any cause other than the negligence or willful misconduct of Gottathink, LLC.
RESALE OF Gottathink, LLC SERVICES.
Customer shall not resell or provide free of charge any Service to any third party without first entering into a Contract for Service with Gottathink, LLC which permits these activities.
DIGITAL MILLENNIUM COPYRIGHT ACT.
Gottathink, LLC will, upon notice specified by the DMCA of a copyright infringement by a copyright holder, block access through any Gottathink, LLC Service to any allegedly infringing materials. If Customer is affected by such a notice, it may give a counter-notice pursuant to the DMCA to Gottathink, LLC, and Gottathink, LLC will forward the counter-notice to the copyright holder. If the copyright holder does not file a legal action against Customer within fourteen (14) days as provided by the DMCA, Gottathink, LLC will re-instate access to the alleged infringing materials.
INDEMNIFICATION.
Gottathink, LLC and Customer shall indemnify, defend and hold the other harmless from and against any expenses, including reasonable attorneys' fees, which result from a claim, or proceeding brought by a third party for (1) the infringement or misappropriation by the indemnitor of intellectual property or (2) personal injury caused by the negligence or willful misconduct of the indemnitor. Customer shall indemnify, defend and hold harmless Gottathink, LLC from and against any expenses, including reasonable attorneys' fees, resulting from or arising out of a claim or proceeding brought by a third party as a result of damage to a Gottathink, LLC Facility or equipment caused by Customer or its representatives. Gottathink, LLC shall indemnify, defend and hold harmless Customer from and against any expenses, including reasonable attorneys' fees, resulting from or arising out of a claim or proceeding brought by a third party as a result of damage to equipment or property of Customer caused by Gottathink, LLC or its contractors, agents, guests, other customers, or licensees. Each party's indemnification obligations shall be subject to its (1) receiving prompt written notice of the existence of a claim subject to indemnification; (2) having the right, at its option, to control the defense of the claim; and (3) receiving the reasonable cooperation of the indemnified party in the defense of the claim.
TRANSFER; ASSIGNMENT.
Customer may not assign or transfer its rights and obligations under a Contract for Service without the prior written consent of Gottathink, LLC, which consent Gottathink, LLC may condition on Customer's agreement to remaining bound by the Contract for Service to pay Gottathink, LLC for Services utilized by Customer's assignee or transferee. Gottathink, LLC may assign or transfer its rights and obligations under a Contract for Service without Customer's consent.
NOTICES.
Notices and other communications between Gottathink, LLC and Customer which are required by or specified in the Contract for Service may be delivered by electronic mail.
Communications related to the Contract for Service may be directed to Gottathink, LLC at support@gottathink.com. Customer shall provide Gottathink, LLC with a valid email address to be used by Gottathink, LLC for communications related to the Contract for Service and shall update that address as needed. Gottathink, LLC shall fulfill its obligations under the Contract for Service by providing Customer with notice at the email address most recently provided to Gottathink, LLC by Customer for use in providing notices pursuant to the Contract for Service.
MODIFICATIONS TO AGREEMENTS.
Gottathink, LLC will maintain the current version of the General Gottathink, LLC Terms and Conditions and of the Terms and Conditions governing specific Gottathink, LLC Services on Gottathink, LLC's website. Gottathink, LLC will notify Customer of any major modifications Gottathink, LLC makes to those terms and conditions at the time it posts the modifications on its website. Customer's use of any Service after Gottathink, LLC notifies Customer of modifications to the Terms and Conditions governing the Service shall constitute Customer's acceptance of the modifications.
DISPUTE RESOLUTION.
The Contract for Service shall be governed by the laws of the State of Washington. The location of any legal proceeding arising out of or related to the Contract for Service shall be in Bellingham, Washington. The prevailing party in any legal proceeding arising out of or related to the Contract for Service shall be entitled to receive its reasonable attorneys' fees and court costs incurred in the proceeding, including in any appellate proceedings.
SEVERABILITY.
If any part of the Contract for Service, including the General Gottathink, LLC Terms and Conditions and the Gottathink, LLC Terms and Conditions governing specific Gottathink, LLC Services, is found to be unenforceable or unlawful, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions of the Contract for Service.
|
|
