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July 21, 2009
Terms and ConditionsTerms and Conditions:
1. Scope of Services and Your Obligations
2. Limited Warranty; Limitation of Liability; Indemnification
3. Payment of Fees
4. Acceptable Use Policy
5. KILOSERVERS's Right to Terminate Agreement
6. Cancellation of Accounts
7. Arbitration and Governing Law
8. Miscellaneous
This Web Hosting Agreement (this "Agreement") sets forth the terms and conditions of your use of KILOSERVERS INC. ("KILOSERVERS INC.") for web hosting services. You certify that you are at least 18 years of age. To become a KILOSERVERS INC. accountholder, you must read and agree to be bound by all terms and conditions of this Agreement and any policies that are or may be published by KILOSERVERS INC.. KILOSERVERS INC. reserves the right to deny service to anyone. KILOSERVERS INC. may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services. Customers that have paid in advance for services will not be affected by any price changes until their term is up.
1. Scope of Services and Your Obligations
1.1. This Agreement defines the terms and conditions of KILOSERVERS INC.'s services as offered by KILOSERVERS INC. and used by you, including the provision of web hosting services on KILOSERVERS INC.'s dedicated servers and connectivity to the Internet (the "Services"). KILOSERVERS INC. will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, KILOSERVERS INC. maintains control and ownership of any and all Internet protocol ("IP") numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.
1.2. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability; CGI-scripts requires knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, .htaccess, .htpasswd, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. KILOSERVERS INC. assumes no responsibility to provide you with such knowledge. KILOSERVERS INC. is unable to review or analyze your code/files/data. If you wish KILOSERVERS INC. to analyze any of your code/files/data then KILOSERVERS INC. may charge you at the current development/consulting rate. KILOSERVERS INC., as a courtesy, may review code/files/data at no charge to KILOSERVERS INC. Tier 1 customers.
1.3. In connection with the Services, KILOSERVERS INC. may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for server management.
1.4. During the period that KILOSERVERS INC. provides the Services to you, you hereby grant to KILOSERVERS INC. a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to use its trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.
1.5. For server restoration purposes only, KILOSERVERS INC. makes back-ups of websites nightly; however, KILOSERVERS INC. makes no guarantees of any kind, either expressed or implied, as to the integrity of these back-ups. You are responsible to maintain local copies of your website / data. If loss of data occurs due to an error of KILOSERVERS INC., KILOSERVERS INC. will attempt to recover the data for no charge. Otherwise, KILOSERVERS INC. will attempt to recover the data from the most recent archive for a $50 fee. If KILOSERVERS INC. is unable to recover your website / data then you will need to restore from your local copy / back-up.
1.6. KILOSERVERS INC. reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. KILOSERVERS INC. will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not KILOSERVERS INC.'s intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law.
1.7. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that KILOSERVERS INC. is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. A§ 512. Consistent with the DMCA, KILOSERVERS INC. will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, KILOSERVERS INC. has a policy of terminating accountholders who are repeat copyright infringers.
1.8. Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on KILOSERVERS INC.'s servers nor the links to other websites are screened, approved, reviewed or endorsed by KILOSERVERS INC.. KILOSERVERS INC. is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not KILOSERVERS INC.'s statements of advice, opinion or information.
1.9 KILOSERVERS INC. charges over bandwidth for accounts that go over their allocated package amount. Over bandwidth charges are billed at the 1st of every month at the individual rates via 95% method.
2. Limited Warranty; Limitation of Liability; Indemnification
2.1. Limited Warranty. You acknowledge that the Services are provided "as is." Neither Kiloservers INC., nor any of its employees or agents, warrants that the Services will be uninterrupted, error free or free from viruses or other harmful components. Kiloservers INC. is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, noninfringement, merchantability or fitness for a particular purpose of information available on its SERVERS or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will Kiloservers INC. be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
2.2. Limitation of Liability: You acknowledge that you are not in any way associated with Kiloservers INC. and that the contents of your website or service provided to your customers are and will be exclusively supplied, provided and edited by you and that you are not associated to Kiloservers INC. that is merely is a hosting company that will not be providing you with any editing or inspection services. IN NO EVENT SHALL Kiloservers INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND OR DATABASE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE Kiloservers INC.'S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF Kiloservers INC.'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF Kiloservers INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Kiloservers INC.'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO Kiloservers INC. FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, Kiloservers INC.'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
2.3. Indemnification. You agree to indemnify, defend and hold Kiloservers INC. and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto Kiloservers INC.'s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to Kiloservers INC.'s equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Kiloservers INC.'s gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
3. Payment of Fees.
Fees are due either monthly or annually in advance of service. You will receive an invoice by email each month on the 1st of the month your service originally commenced for the forthcoming month's service, this is your monthly billing date. Webhosting payments are not refundable and can not be canceled after purchase.
3.1. Kiloservers INC. will sent sent a notice of fee increases 30 days before such increases take effect via e-mail.
3.2. You agree to provide Kiloservers INC. with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and applicable payment date and to update this information immediately if any change occurs. Payments must be submitted in advance of receiving the Services.
3.3. You acknowledge that Kiloservers INC. will bill your credit card prior to the Payment Interval you have chosen. You authorize automatic billing by Kiloservers INC. on an on-going basis during the term of this Agreement.
3.4. Kiloservers INC. will charge a $15 service charge per credit card chargeback transaction and a $25 service charge per returned check.
3.5. Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent. Notwithstanding any other rights Kiloservers INC. may have in this Agreement, all of your website contents will be destroyed if your account is delinquent for 60 days. Kiloservers INC. accounts continue to accrue charges while they are delinquent or if the Services are suspended.
3.6. You acknowledge responsibility for your account until payment in full is made.
4. Acceptable Use Policy
4.1. Use and Misuse of the Services. All complaints of abuse, violation and misuse of the Services, whether described in this Section 4 or otherwise, shall be investigated promptly. If you are not sure if your actions will be an abuse, violation or misuse, please ask first: abuse@Kiloservers.com
You are responsible for all use of your website, with or without your knowledge or consent.
You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating any export restrictions; stalking; or violating other laws. Linking to illegal material is also prohibited.
When Kiloservers INC. becomes aware of possible violations of this Agreement, Kiloservers INC. may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on Kiloservers INC.'s servers. Kiloservers INC. is willing to consider at their own volition complaints sent at a designated-mail address or sent in writing to the appropriate address, that appear to be genuine and meritorious but any such complaint may be prejudiced if does not contain the name, the address, the telephone number and an appropriate e-mail address of the complainant. The above private information of the complainant shall be considered confidential and shall not be disclosed to the anyone except the appropriate authorities conducting an investigation and the employees of Kiloservers who might reasonable need access to this information. Any person submitting a false complaint or complaints that fails to meet a reasonable standard or accuracy or misleading information, shall be liable to indemnify Kiloservers for any damades caused in result or reliance on such complaint or information.
Kiloservers INC., in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject you to criminal or civil liability.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD Kiloservers INC. HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY Kiloservers INC. AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM Kiloservers INC. AS A RESULT OF Kiloservers INC.'S DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF Kiloservers INC.'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
4.2. Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain.
You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of prohibited material include, but are not limited to:
- Threats of physical harm, excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- Copyrighted, trademarked and other proprietary material used without proper authorization. Intended to assist others in defeating technical copyright protections, Clearly infringes on another persons trade or service mark, patent, or other property right;
- Unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- Defamatory or violates a person's privacy;
- Creates a risk to a persons safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
- Improperly exposes trade secrets or other confidential or proprietary information of another person;
- Promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
- Promote terrorism and any kind of ethnic, social or religious discord;
- Constitutes, fosters, or promotes child pornography. Marketing the site utilizing content including “Kids”, "Lolita", "Pedo", "Peta”, “Peto”, Pre-teen", ”Pedophile”, “Underage”, “Child” or any other words, images, or descriptions that would lead someone to believe that the models are less than 18 years of age is not permitted anywhere on venue including the URL and meta tags;
- The posting or display of any image or wording depicting or related to incest, snuff, scat or the elimination of any bodily waste on another person, mutilation, or rape anywhere on the site, including the URL and meta tags.
- The posting or display of any image or wording depicting or related to bestiality anywhere on the site. including the URL and meta tags.
- Otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Kiloservers;
- Otherwise malicious, fraudulent, or may result in retaliation against Kiloservers by offended viewers;
Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX.
Kiloservers INC. supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, Kiloservers INC. will not substitute itself for a court of law in deciding tort claims raised by the third party.
4.3. Email Use. Bulk or Commercial E-Mail.
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial e-mail. In addition, you must obtain Kiloservers's advance approval for any bulk e-mail, which will not be given unless you are able to demonstrate all of the following to Kiloservers's reasonable satisfaction:
- Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
- Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
- You retain evidence of the recipientOs consent in a form that may be promptly produced on request, and you honor recipient's and Kiloservers's requests to produce consent evidence within 72 hours of receipt of the request;
- You have procedures in place that allow a recipient to easily revoke their consent - such as a link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours;
- You must post an e-mail address for complaints (such as abuse@yourdoman.com) in a conspicuous place on any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
- You must have a Privacy Policy posted for each domain associated with the mailing;
- You have the means to track anonymous complaints;
- You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the "TO" line of the e-mail; These policies apply to messages sent using your Kiloservers service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an e-mail address hosted via your Kiloservers service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. Kiloservers may test and otherwise monitor your compliance with its requirements, and may block the transmission of e-mail that violates these provisions.
You may not use Kiloservers INC. mail services, servers or components to send out mail from other sites or services that are not hosted with Kiloservers INC.. You may not use Kiloservers INC. mail services, servers or components to send out mail advertisements for other sites not pertaining to the website you are hosting with Kiloservers INC..
4.4. System Security. You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at Kiloservers INC. or at any other site. Use or distribution of tools designed for compromising security or containing viruses or trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools.
If you are involved in violations of system security, Kiloservers INC. reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. Kiloservers INC. will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
4.5. System Resources. System abuse includes any use of Kiloservers INC. resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space.
4.6. 99,9% UPTIME GUARANTEE
Kiloservers endeavors to have the content of your Web site available for http access by third parties 99,9% of the time ("Web Site Availability").
In the event that there is no Web Site Availability, Kiloservers will credit the following month's service fee as follows.
Customer Web Site Availability Credit:
99,8% to 99.89% - 5%
95% to 99.8% - 25%
90% to 94.9% - 50%
89.9% or below - 100%
For Dedicated Hosting services, if the Web Site Availability is between 98.9% and 99.9% for any particular month, the credit will be retroactive and equivalent to the difference between the guaranteed level of availability of the customer's services during the month and the calculated actual level of availability of the customer's services, multiplied by the actual charges incurred by the customer for the services during that month period. In addition, for Dedicated Hosting services, customers may be entitled to additional credits as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed fifty percent (50%) of the monthly service charge for the affected month.
In order for you to receive a credit on your account, you must request such credit within seven (7) business days after you experienced no Web Site Availability. You must request credit by sending an electronic mail message to support@Kiloservers.com. For security, the body of this message must contain your server ID, the dates and times of the unavailability of your Web site, and such other customer identification requested by Kiloservers. Credits will usually be applied within sixty (60) days of your credit request. Credit to your account will be your sole and exclusive remedy in the event that there is no Web Site Availability.
Credits will not be provided to you in the event that you have no Web Site Availability resulting from:
- scheduled maintenance as posted from time to time at Kiloservers.com,
- your behavior or the performance or failure of your equipment, facilities or applications, or
- circumstances beyond Kiloservers's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your Web site.
5. Kiloservers's Right to Terminate Agreement
(a) Kiloservers INC. reserves the right to suspend or terminate the Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any conduct that Kiloservers INC., in its sole discretion, believes violates this Agreement or is otherwise harmful to Kiloservers INC.'s interests or the interests of other accountholders.
(b) Kiloservers INC. also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.
6. Cancellation of Accounts
6.1. You may cancel your Kiloservers INC. account by visiting Kiloservers Website. Charges for canceling accounts are not prorated on a monthly basis. No refunds are given on any accounts that are pre-paid in advance unless they are canceled within the first 30 days of when the account was established. The 30 day guarantee does not apply to reseller accounts.
6.2. All Kiloservers INC. accounts must be paid in full before the cancellation will be considered complete.
6.3 When canceling an account, cancellations take effect immediately and do not continue for the amount of your term left on your account. Kiloservers INC. does not give refunds on the remaining term left on an account that was canceled after the charges have been billed. Kiloservers INC. will send out an invoice via e-mail 5 days prior to billing. Customer must inform Kiloservers INC. of cancellation prior to the new billing date. Any charges that incurred after the billing date and cancellation are non-refundable. It is customer's responsibility to make sure that Kiloservers INC. has accurate e-mail address / billing information on file for the invoices to reach you.
6.4. If your account is suspended or terminated for any reason permitted by this Agreement, Kiloservers INC. may, at its sole discretion, permanently delete your website contents from Kiloservers INC. servers, and Kiloservers INC. will not be able to reopen or restore such content. If your account has been canceled or suspended due to a violation of our Terms and Conditions and Acceptable use policy no refunds will be given on any pre-paid term.
7. Arbitration and Governing Law
7.1. Except for Kiloservers INC.'s compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by Kiloservers INC. pursuant to Section 5(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of Kiloservers INC.'s servers, such controversy or dispute shall first be presented for resolution by Kiloservers INC. and you. If no resolution is reached within 7 days thereafter, then such controversy or dispute shall be resolved by binding arbitration in Limassol, Cyprus, under the then-current rules of commercial arbitration. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the Republic of Cyprus and International Laws. (without regard to conflicts of laws principles).
7.2 You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of court located in Limassol, Cyprus, for any action, suit or proceeding arising out of or relating to Section 5(b) of this Agreement and the arbitration contemplated by this Section 7.
8. Miscellaneous
You may not assign your rights and obligations under this Agreement without the prior written consent of Kiloservers INC., which may be withheld at Kiloservers INC.'s discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of Kiloservers INC. to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Kiloservers INC. of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by Kiloservers INC.. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Kiloservers INC. and supersede and govern all prior proposals, agreements, or other communications.
2. Limited Warranty; Limitation of Liability; Indemnification
3. Payment of Fees
4. Acceptable Use Policy
5. KILOSERVERS's Right to Terminate Agreement
6. Cancellation of Accounts
7. Arbitration and Governing Law
8. Miscellaneous
This Web Hosting Agreement (this "Agreement") sets forth the terms and conditions of your use of KILOSERVERS INC. ("KILOSERVERS INC.") for web hosting services. You certify that you are at least 18 years of age. To become a KILOSERVERS INC. accountholder, you must read and agree to be bound by all terms and conditions of this Agreement and any policies that are or may be published by KILOSERVERS INC.. KILOSERVERS INC. reserves the right to deny service to anyone. KILOSERVERS INC. may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services. Customers that have paid in advance for services will not be affected by any price changes until their term is up.
1. Scope of Services and Your Obligations
1.1. This Agreement defines the terms and conditions of KILOSERVERS INC.'s services as offered by KILOSERVERS INC. and used by you, including the provision of web hosting services on KILOSERVERS INC.'s dedicated servers and connectivity to the Internet (the "Services"). KILOSERVERS INC. will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, KILOSERVERS INC. maintains control and ownership of any and all Internet protocol ("IP") numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.
1.2. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability; CGI-scripts requires knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, .htaccess, .htpasswd, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. KILOSERVERS INC. assumes no responsibility to provide you with such knowledge. KILOSERVERS INC. is unable to review or analyze your code/files/data. If you wish KILOSERVERS INC. to analyze any of your code/files/data then KILOSERVERS INC. may charge you at the current development/consulting rate. KILOSERVERS INC., as a courtesy, may review code/files/data at no charge to KILOSERVERS INC. Tier 1 customers.
1.3. In connection with the Services, KILOSERVERS INC. may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for server management.
1.4. During the period that KILOSERVERS INC. provides the Services to you, you hereby grant to KILOSERVERS INC. a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to use its trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.
1.5. For server restoration purposes only, KILOSERVERS INC. makes back-ups of websites nightly; however, KILOSERVERS INC. makes no guarantees of any kind, either expressed or implied, as to the integrity of these back-ups. You are responsible to maintain local copies of your website / data. If loss of data occurs due to an error of KILOSERVERS INC., KILOSERVERS INC. will attempt to recover the data for no charge. Otherwise, KILOSERVERS INC. will attempt to recover the data from the most recent archive for a $50 fee. If KILOSERVERS INC. is unable to recover your website / data then you will need to restore from your local copy / back-up.
1.6. KILOSERVERS INC. reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. KILOSERVERS INC. will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not KILOSERVERS INC.'s intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law.
1.7. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that KILOSERVERS INC. is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. A§ 512. Consistent with the DMCA, KILOSERVERS INC. will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, KILOSERVERS INC. has a policy of terminating accountholders who are repeat copyright infringers.
1.8. Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on KILOSERVERS INC.'s servers nor the links to other websites are screened, approved, reviewed or endorsed by KILOSERVERS INC.. KILOSERVERS INC. is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not KILOSERVERS INC.'s statements of advice, opinion or information.
1.9 KILOSERVERS INC. charges over bandwidth for accounts that go over their allocated package amount. Over bandwidth charges are billed at the 1st of every month at the individual rates via 95% method.
2. Limited Warranty; Limitation of Liability; Indemnification
2.1. Limited Warranty. You acknowledge that the Services are provided "as is." Neither Kiloservers INC., nor any of its employees or agents, warrants that the Services will be uninterrupted, error free or free from viruses or other harmful components. Kiloservers INC. is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, noninfringement, merchantability or fitness for a particular purpose of information available on its SERVERS or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will Kiloservers INC. be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
2.2. Limitation of Liability: You acknowledge that you are not in any way associated with Kiloservers INC. and that the contents of your website or service provided to your customers are and will be exclusively supplied, provided and edited by you and that you are not associated to Kiloservers INC. that is merely is a hosting company that will not be providing you with any editing or inspection services. IN NO EVENT SHALL Kiloservers INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND OR DATABASE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE Kiloservers INC.'S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF Kiloservers INC.'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF Kiloservers INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Kiloservers INC.'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO Kiloservers INC. FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, Kiloservers INC.'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
2.3. Indemnification. You agree to indemnify, defend and hold Kiloservers INC. and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto Kiloservers INC.'s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to Kiloservers INC.'s equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Kiloservers INC.'s gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
3. Payment of Fees.
Fees are due either monthly or annually in advance of service. You will receive an invoice by email each month on the 1st of the month your service originally commenced for the forthcoming month's service, this is your monthly billing date. Webhosting payments are not refundable and can not be canceled after purchase.
3.1. Kiloservers INC. will sent sent a notice of fee increases 30 days before such increases take effect via e-mail.
3.2. You agree to provide Kiloservers INC. with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and applicable payment date and to update this information immediately if any change occurs. Payments must be submitted in advance of receiving the Services.
3.3. You acknowledge that Kiloservers INC. will bill your credit card prior to the Payment Interval you have chosen. You authorize automatic billing by Kiloservers INC. on an on-going basis during the term of this Agreement.
3.4. Kiloservers INC. will charge a $15 service charge per credit card chargeback transaction and a $25 service charge per returned check.
3.5. Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent. Notwithstanding any other rights Kiloservers INC. may have in this Agreement, all of your website contents will be destroyed if your account is delinquent for 60 days. Kiloservers INC. accounts continue to accrue charges while they are delinquent or if the Services are suspended.
3.6. You acknowledge responsibility for your account until payment in full is made.
4. Acceptable Use Policy
4.1. Use and Misuse of the Services. All complaints of abuse, violation and misuse of the Services, whether described in this Section 4 or otherwise, shall be investigated promptly. If you are not sure if your actions will be an abuse, violation or misuse, please ask first: abuse@Kiloservers.com
You are responsible for all use of your website, with or without your knowledge or consent.
You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating any export restrictions; stalking; or violating other laws. Linking to illegal material is also prohibited.
When Kiloservers INC. becomes aware of possible violations of this Agreement, Kiloservers INC. may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on Kiloservers INC.'s servers. Kiloservers INC. is willing to consider at their own volition complaints sent at a designated-mail address or sent in writing to the appropriate address, that appear to be genuine and meritorious but any such complaint may be prejudiced if does not contain the name, the address, the telephone number and an appropriate e-mail address of the complainant. The above private information of the complainant shall be considered confidential and shall not be disclosed to the anyone except the appropriate authorities conducting an investigation and the employees of Kiloservers who might reasonable need access to this information. Any person submitting a false complaint or complaints that fails to meet a reasonable standard or accuracy or misleading information, shall be liable to indemnify Kiloservers for any damades caused in result or reliance on such complaint or information.
Kiloservers INC., in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject you to criminal or civil liability.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD Kiloservers INC. HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY Kiloservers INC. AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM Kiloservers INC. AS A RESULT OF Kiloservers INC.'S DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF Kiloservers INC.'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
4.2. Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain.
You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of prohibited material include, but are not limited to:
- Threats of physical harm, excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- Copyrighted, trademarked and other proprietary material used without proper authorization. Intended to assist others in defeating technical copyright protections, Clearly infringes on another persons trade or service mark, patent, or other property right;
- Unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- Defamatory or violates a person's privacy;
- Creates a risk to a persons safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
- Improperly exposes trade secrets or other confidential or proprietary information of another person;
- Promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
- Promote terrorism and any kind of ethnic, social or religious discord;
- Constitutes, fosters, or promotes child pornography. Marketing the site utilizing content including “Kids”, "Lolita", "Pedo", "Peta”, “Peto”, Pre-teen", ”Pedophile”, “Underage”, “Child” or any other words, images, or descriptions that would lead someone to believe that the models are less than 18 years of age is not permitted anywhere on venue including the URL and meta tags;
- The posting or display of any image or wording depicting or related to incest, snuff, scat or the elimination of any bodily waste on another person, mutilation, or rape anywhere on the site, including the URL and meta tags.
- The posting or display of any image or wording depicting or related to bestiality anywhere on the site. including the URL and meta tags.
- Otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Kiloservers;
- Otherwise malicious, fraudulent, or may result in retaliation against Kiloservers by offended viewers;
Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX.
Kiloservers INC. supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, Kiloservers INC. will not substitute itself for a court of law in deciding tort claims raised by the third party.
4.3. Email Use. Bulk or Commercial E-Mail.
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial e-mail. In addition, you must obtain Kiloservers's advance approval for any bulk e-mail, which will not be given unless you are able to demonstrate all of the following to Kiloservers's reasonable satisfaction:
- Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
- Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
- You retain evidence of the recipientOs consent in a form that may be promptly produced on request, and you honor recipient's and Kiloservers's requests to produce consent evidence within 72 hours of receipt of the request;
- You have procedures in place that allow a recipient to easily revoke their consent - such as a link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours;
- You must post an e-mail address for complaints (such as abuse@yourdoman.com) in a conspicuous place on any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
- You must have a Privacy Policy posted for each domain associated with the mailing;
- You have the means to track anonymous complaints;
- You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the "TO" line of the e-mail; These policies apply to messages sent using your Kiloservers service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an e-mail address hosted via your Kiloservers service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. Kiloservers may test and otherwise monitor your compliance with its requirements, and may block the transmission of e-mail that violates these provisions.
You may not use Kiloservers INC. mail services, servers or components to send out mail from other sites or services that are not hosted with Kiloservers INC.. You may not use Kiloservers INC. mail services, servers or components to send out mail advertisements for other sites not pertaining to the website you are hosting with Kiloservers INC..
4.4. System Security. You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at Kiloservers INC. or at any other site. Use or distribution of tools designed for compromising security or containing viruses or trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools.
If you are involved in violations of system security, Kiloservers INC. reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. Kiloservers INC. will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
4.5. System Resources. System abuse includes any use of Kiloservers INC. resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space.
4.6. 99,9% UPTIME GUARANTEE
Kiloservers endeavors to have the content of your Web site available for http access by third parties 99,9% of the time ("Web Site Availability").
In the event that there is no Web Site Availability, Kiloservers will credit the following month's service fee as follows.
Customer Web Site Availability Credit:
99,8% to 99.89% - 5%
95% to 99.8% - 25%
90% to 94.9% - 50%
89.9% or below - 100%
For Dedicated Hosting services, if the Web Site Availability is between 98.9% and 99.9% for any particular month, the credit will be retroactive and equivalent to the difference between the guaranteed level of availability of the customer's services during the month and the calculated actual level of availability of the customer's services, multiplied by the actual charges incurred by the customer for the services during that month period. In addition, for Dedicated Hosting services, customers may be entitled to additional credits as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed fifty percent (50%) of the monthly service charge for the affected month.
In order for you to receive a credit on your account, you must request such credit within seven (7) business days after you experienced no Web Site Availability. You must request credit by sending an electronic mail message to support@Kiloservers.com. For security, the body of this message must contain your server ID, the dates and times of the unavailability of your Web site, and such other customer identification requested by Kiloservers. Credits will usually be applied within sixty (60) days of your credit request. Credit to your account will be your sole and exclusive remedy in the event that there is no Web Site Availability.
Credits will not be provided to you in the event that you have no Web Site Availability resulting from:
- scheduled maintenance as posted from time to time at Kiloservers.com,
- your behavior or the performance or failure of your equipment, facilities or applications, or
- circumstances beyond Kiloservers's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your Web site.
5. Kiloservers's Right to Terminate Agreement
(a) Kiloservers INC. reserves the right to suspend or terminate the Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any conduct that Kiloservers INC., in its sole discretion, believes violates this Agreement or is otherwise harmful to Kiloservers INC.'s interests or the interests of other accountholders.
(b) Kiloservers INC. also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.
6. Cancellation of Accounts
6.1. You may cancel your Kiloservers INC. account by visiting Kiloservers Website. Charges for canceling accounts are not prorated on a monthly basis. No refunds are given on any accounts that are pre-paid in advance unless they are canceled within the first 30 days of when the account was established. The 30 day guarantee does not apply to reseller accounts.
6.2. All Kiloservers INC. accounts must be paid in full before the cancellation will be considered complete.
6.3 When canceling an account, cancellations take effect immediately and do not continue for the amount of your term left on your account. Kiloservers INC. does not give refunds on the remaining term left on an account that was canceled after the charges have been billed. Kiloservers INC. will send out an invoice via e-mail 5 days prior to billing. Customer must inform Kiloservers INC. of cancellation prior to the new billing date. Any charges that incurred after the billing date and cancellation are non-refundable. It is customer's responsibility to make sure that Kiloservers INC. has accurate e-mail address / billing information on file for the invoices to reach you.
6.4. If your account is suspended or terminated for any reason permitted by this Agreement, Kiloservers INC. may, at its sole discretion, permanently delete your website contents from Kiloservers INC. servers, and Kiloservers INC. will not be able to reopen or restore such content. If your account has been canceled or suspended due to a violation of our Terms and Conditions and Acceptable use policy no refunds will be given on any pre-paid term.
7. Arbitration and Governing Law
7.1. Except for Kiloservers INC.'s compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by Kiloservers INC. pursuant to Section 5(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of Kiloservers INC.'s servers, such controversy or dispute shall first be presented for resolution by Kiloservers INC. and you. If no resolution is reached within 7 days thereafter, then such controversy or dispute shall be resolved by binding arbitration in Limassol, Cyprus, under the then-current rules of commercial arbitration. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the Republic of Cyprus and International Laws. (without regard to conflicts of laws principles).
7.2 You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of court located in Limassol, Cyprus, for any action, suit or proceeding arising out of or relating to Section 5(b) of this Agreement and the arbitration contemplated by this Section 7.
8. Miscellaneous
You may not assign your rights and obligations under this Agreement without the prior written consent of Kiloservers INC., which may be withheld at Kiloservers INC.'s discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of Kiloservers INC. to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Kiloservers INC. of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by Kiloservers INC.. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Kiloservers INC. and supersede and govern all prior proposals, agreements, or other communications.
