1 Article 1. Payment terms
Payments are unless otherwise stated due in advance of service in Euro or U.S. Dollar by the Invoice due date (your Invoice currency depends on the location services are committed at). Payments not received by the Invoice due date are considered past due and Netrouting may (a) apply a late charge equal to €/$12.50, (b) require a Security Deposit or other form of Security, and (c) terminate the Service being provided to Customer. Additional Bandwidth and Power payments are due within 14 days of Invoice Date. Customer agrees to review each Invoice promptly and to report any dispute of Amount Due within 3 days of receipt of the Invoice. If Customer does not report a dispute within this time period, Customer shall have waived its right to dispute that Invoice.
2 Article 2. Governing law
This Agreement for services in Europe shall be governed by the Laws of The Netherlands, without regard to its principles of choice of law. This agreement for services in United States shall be governed by the Laws of United States, without regard to its principles of choice of law.
3 Article 3. Customer registration
Customer hereby declares that he is registered with the appropriate and necessary licenses to carry out the business for which Customer is obtaining Netrouting’s services. Registration documentation in attachment no 1 is an integral part of this agreement. Customers based in the member states of the EU agree to pay VAT at the rate in force in The Netherlands at the date of issue of invoices, which under current EU regulations will be 21%.
All notices and other communications hereunder shall be in writing and shall be deemed to have been given as of the date of confirmed delivery, email delivery, or confirmed facsimile transmission. To be effective, Notices must be delivered by Postal Service to: Netrouting International, Boyleweg 2, 3208 KA Spijkenisse, The Netherlands or via email to [email protected]
5 Article 5. Waiver of Breach not deemed Continuing
The waiver by either party of a breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof.
In the event of a bankruptcy or insolvency of either party, or if either party makes an assignment for the benefit of creditors, or takes advantage of any act or law for relief from debtors, the other party shall have the right to terminate this Agreement without further obligation or liability.
7 Article 7. Business relationship
This Agreement shall not create any agency, employment, joint venture, partnership, or fiduciary relationship between the parties. Neither party shall have the authority to, nor shall either party attempt to create any obligation on behalf of the other party.
Each party shall indemnify, defend, release, and hold harmless the other party from and against any action, claim, court cost, damage, demand, expense, liability, loss, penalty, proceeding, or suit together with related attorney’s fees and costs (collectively “Claims”) for damage to property or personal injuries, including death, as a result of an intentional or negligent act or omission on the part of the indemnifying party in connection with the performance of this Agreement or other activities relating to the Service, the property, or the facilities which are the subject of this Agreement. In the event a Claim relates to negligence of both parties, the relative burden of the Claim shall be attributed equitably between the parties in accordance with the principles of comparative negligence. The term “Property” shall include real, personal, tangible, and intangible property, including but not limited to data, proprietary information, intellectual property, trade secrets, trademarks, or service marks, licensing agreements, copyrights patents and knowledge.
The term “Personal Injuries” shall also include claims of libel, slander, or invasion of privacy arising directly or indirectly out of the provision of Service pursuant to this Agreement. In the event any action is brought against the indemnified party, such party shall immediately notify the indemnifying party in writing, and the indemnifying party, upon request, shall assume the cost of the defense on behalf of the indemnified party. The indemnifying party shall pay all expenses incurred by and satisfy all judgments rendered against the indemnified party provided that the indemnifying party shall not be liable for any settlement effected without its written consent.
9 Article 9. Legal construction
In the event of a conflict between the provisions of these Terms of Service, a Supplement, or Exhibit, the conflict shall be resolved by reference to the documents in the following order of priority: (a) Exhibit; (b) Supplement; (c) Terms of Service. Not withstanding the foregoing Exhibit requiring execution shall be binding unless and until it has been duly executed.
10 Article 10. Limitation of liability
Netrouting’s liability arising out of: (a) the provision of Service; (b) delays in the restoration of Services; (c) mistakes, accidents, omissions, interruptions, errors or defects in transmission, shall be subject to the limitations as set forth below. OTHER THAN THE INDEMNITY OBLIGATIONS HEREIN, IN NO EVENT SHALL Netrouting BE LIABLE TO CUSTOMER, CUSTOMERS OWN CUSTOMERS, OR ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, OR PUNITIVE DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL Netrouting BE LIABLE TO CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT Netrouting HAS PRIOR TO SUCH TIME COLLECTED FROM CUSTOMER WITH RESPECT TO SERVICES DELIVERED HEREUNDER.
11 Article 11. Maintenance
In the event that Netrouting determines that it is necessary to interrupt Services or that there is a potential for Services to be interrupted, Netrouting will use good faith efforts to notify Customer prior to the performance of system maintenance and will schedule any regular maintenance during non-peak hours. In no event shall interruption for system maintenance constitute a failure of performance by Netrouting.
12 Article 12. Force majeure
Except for the obligations to make payments for amounts, neither party shall be liable to the other nor deemed in default under this contract if and to the extent that such parties performance of this Agreement is delayed or prevented by reason of Force Majeure. The term Force Majeure means an occurrence that is beyond the reasonable control of the party affected and occurs without its fault or negligence. If the supplier is unable to restore or provide Services for fourteen (14) consecutive days due to a Force Majeure event, Customer may cancel the affected Services.
The covenants and agreements contained in this Agreement with respect to Payment Terms, Confidential Information, Limitation of Liability, and Indemnity shall survive termination of this Agreement, regardless of the reason for termination. The rights and obligations under this Agreement shall survive any merger or sale of either party and shall be binding upon the successors and permitted assigns of each party. Events of Default. A “Default” shall occur if (a) Customer fails to make payments as required under this Agreement and such failure remains uncorrected for seven calendar days after Invoice date; or (b) either party fails to perform or observe any material term or obligation (other than making payment) contained in this Agreement, and such failure remains uncorrected for thirty calendar days after written notice from the non-defaulting party. If Customer uses the Services for any unlawful purpose or in any unlawful manner, Netrouting shall have the right to immediately suspend or terminate all Services hereunder without notice to the Customer. Amendments and/or Riders for this Agreement may only be modified or supplemented by an instrument in writing executed by each party.
Netrouting’s Network and Services must be used in a manner that is consistent with their intended purposes and may be used only for lawful purposes. Users may not use Netrouting’s Network and Services in order to transmit, distribute or store material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, (c) that is fraudulent, obscene, defamatory, libellous, threatening, abusive or hateful or contains a virus, worm, Trojan horse, or other harmful component, (d) containing fraudulent offers for goods or services or any promotional materials that contain false, deceptive or misleading statements, claims or representations or (e) generally, in a manner that may expose Netrouting or any of its personnel to criminal or civil liability.
15 Responsibility for Content
Netrouting takes no responsibility for any material created or accessible on or through Netrouting’s Networks and Services that is not posted by or at the request of Netrouting. Netrouting does not monitor nor exercise any editorial control over such material, but reserves the right to do so to the extent permitted by applicable law. Netrouting is not responsible for the content of any web sites other than Netrouting’s web sites, including for the content of web sites linked to such Netrouting’s web sites. Links are provided as Internet navigation tools only.
Users may not send unsolicited e-mail messages, including, without limitation, bulk commercial advertising or informational announcements (“Spam”) in a way that could be reasonably expected to adversely impact Netrouting’s Network and Services, including, without limitation, using an e-mail account on Netrouting’s network to send Spam, or using the service of another provider to send Spam or to promote a site hosted on or connected to Netrouting’s network. In addition, Users may not use Netrouting’s Network and Services in order to (a) send e-mail messages which are excessive and/ or intended to harass or annoy others, (b) continue to send e-mail messages to a recipient that has indicated that he/she does not wish to receive them, (c) send e-mail with forged TCP/IP packet header information, (d) send malicious e-mail, including, without limitation, “mailbombing”, (e) send or receive e-mail messages in a manner that violates the use policies of any other internet service provider, or (f) use an e-mail box exclusively as a storage space for data.
Users may have access through Netrouting’s Network and Services to search engines, subscription web services, chat areas, bulletin boards, web pages, Usenet, or other services that promulgate rules, guidelines or agreements to govern their use. Users must adhere to any such rules, guidelines and agreements. Users who post messages to Usenet newsgroups are responsible for becoming familiar with any written charter or FAQ governing use of such newsgroups and complying therewith. Regardless of such policies, Users may not (a) post the same message, or a series of similar messages, to one or more newsgroups (excessive cross-posting or multiple-posting, also known as “Usenet Spam”), (b) cancel or supersede posts not originally posted by such User, unless such User does so in the course of his/her duties as an official newsgroup moderator, (c) post any message with forged packet header information, (d) post messages that are excessive and/or intended to annoy or harass others, including, without limitation, chain letters, or (e) publish anonymous messages.
18 System and Network Security
Users are prohibited from violating or attempting to violate the security of Netrouting’s Network and Services, including, without limitation, (a) accessing data not intended for such User or logging into a server or account which such User is not authorised to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation, (c) attempting to interfere with, disrupt or disable service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing”, (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or (e) taking any action in order to obtain services to which such User is not entitled. Violations of system or network security may result in civil or criminal liability. Netrouting will investigate occurrences that may involve such violations and may involve, and co-operate with, law enforcement authorities in prosecuting Users who are involved in such violations.
19 Suspension; Termination
Any User which Netrouting determines, in its sole discretion, to have violated any element of this Acceptable Use Policy shall receive a written warning and may be subject, at Netrouting’s discretion, to a temporary suspension of service until such User agrees in writing to refrain from any further violations. However, where Netrouting deems it necessary, it may in its sole discretion immediately suspend or terminate such User’s service without issuing such a warning. Users which Netrouting determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice and Netrouting may take such further action as Netrouting solely determines to be appropriate under the circumstances to eliminate or preclude such violation. Netrouting shall not be liable for any damages of any nature suffered by any Customer, User, or any third party resulting in whole or in part from Netrouting’s exercise of its rights under these policies.