TFWPH Hosting & Maintenance Terms of Service
Terms of Service (TOS) for TheFastestWordPresss Hosting (TFWPH), Service Descriptions (see Section 1.1) and Orders (Section 1.2) and others attached hereto (the “Agreement”) is entered between Intercultural Communications Inc., (hereafter “ICC”) and the party entering into an Order with ICC (“Customer”) as may be identified in this Agreement (each “Party” and collectively as “Parties”) as of the Customer’s service activation date (“Effective Date”). The purpose of this Agreement is to provide a framework governing Customer’s purchase of services from ICC pursuant to one or more Orders (“Services”). ICC rejects any terms and conditions contained in Customer’s forms that are additional to or different from those set forth in ICC’s Order, Services Descriptions, or in these TOS. ICC and Customer agree to the following:
1. AGREEMENT, ORDER AND SERVICES
This contains general contractual terms for all services to be provided by ICC pursuant to one or more orders. Additional terms and conditions that apply to each type of service may be set forth in related descriptions, which will be on TFWPH’s website or otherwise made available to Customer (as a “service description”), and/or in the applicable order. ICC may occasionally alter service descriptions to add, improve, or substitute services to improve performances or discontinue a product (“updates”). Customer agrees to periodically check TFWPH’s website for such updates.
Customer may request ICC provide a service by submitting an order via the website. Each order is incorporated into the Agreement and will contain applicable pricing and payment terms, Service Level Agreement (SLA), if any, and other transaction- specific provisions. In the event of conflicts between this Agreement and terms of any service descriptions and applicable order(s), precedence will be given to: 1) the order, but solely with respect to services covered by it; 2) service description, but only with respect to the service covered by related description; and 3) this agreement.
ICC will provide technical support services for services (“support”) to customers based on the level of support purchased in an Order. Descriptions of support levels are set forth in the related service description. Support is only available to a customer; ICC has no obligation to provide it to other parties. ICC will also make services available in accordance with applicable levels set forth in SLAs. ICC may periodically change support or SLA terms, so customers should regularly check TFWPH’s website for updates.
We update WordPress, themes and plugins once each week; if we receive a notification of a security vulnerability for one of these on your site we will update as soon as possible. We do not update any plugins that require file uploads. We may delay updates of plugins or themes until we have confirmed that they are compatible with hosting infrastructure, WordPress version and theme/plugin versions that your site is running at our sole discretion. Should this delay continue for more than 1 week, we will notify you of our reasons for refraining from updating so that you can take proper steps. After we have performed your updates, if your website is not working properly, we will restore it to the previous version at no extra cost. (See 1.3.3 Customer Responsibilities.)
We provide current technical support for the pro/enterprise versions of select popular themes & plugins as a service to our customers. The themes and plugins we choose to provide updated support for can change at any time and without notice.
1.3.2 Support Requests
Plausible Support Requests:
- WordPress Core File Issues
- Site Migrations
- Theme or Plugin Troubleshooting
- Plugin research & recommendations
- Additional standard errors
- Responding to technical questions
- Backup file transfer
- Disaster recovery
- Hack recovery
- Malware removal (after 24-hour introductory period; additional fee if site is already infected)
Support Requests Not Covered:
- Work requiring file uploads or downloads.
- Work requiring direct editing of code.
- Updating of complex themes or plugins that could require substantial reworking of the site to implement. These include many types of shopping carts, directory themes, membership management, etc. This work will incur an additional fee.
- Design or Development of any kind.
- Adding or removing themes, features or plugins.
- Search Engine Optimization
- Total monthly support time for cannot exceed 1 hour per month. Total annual support time cannot exceed 8 hours per the year.
Though monthly backups are included with all hosting plans, backups are provided that the responsibility for maintaining backups remains with the customer… backups as a service are not a replacement for proper backup measures taken by the site owner.. Daily or hourly backups are provided according to your No Worries Maintenance plan. We only backup your WordPress files, WordPress directories & WordPress databases. We do not backup files or directories that are not part of the WordPress installation. We store the number of backup files allowed according to your plan. The total space consumed by your website’s WordPress files and database file must be less than the maximum allowed by your subscription as specified on our website. If your website’s backup exceeds the amount allowed by your plan, then you must upgrade to a bigger plan. A typical WordPress business Website is less than 1 GB. If your website is bigger than 1GB, which is the maximum allowed by our professional plan, we will be glad to accommodate your business needs by charging you an additional fee for each extra 1 GB of data. We will inform you of that fee at the time that you exceed the 1 GB and you will not be charged for the first backup exceeding the 1 GB.
1.3.4 Customer Responsibilities
- Customers maintain technical support agreements for all themes & plugins on their site that are not included with our maintenance services.
- Websites must use plugins and themes that are properly maintained and updated by their author.
- Customers should monitor and test their website regularly. Inspect pages after updates and test contact forms, API connections, payment gateways, etc. on a timely basis so that any site issues are caught and dealt with promptly.
- While we maintain offsite backups of every website, in theory it is possible for backups to become corrupted or lost. When you make major changes to your site, we strongly suggest that you request a full backup of your site and store it in a safe place.
- Customer is responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law Customer will hold harmless, protect, and defend and indemnify ICC and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from improper use of internet electronic commerce by Customer or any clients of Customer.
- Customer can NOT use “newsletter” plugins or any other systems that attempt to send out mass emails from our hosting service.
1.4. Third-Party Products:
ICC may occasionally make available to customers certain third-party products, and if purchased by a customer, such products are non-refundable upon termination of the agreement. Customer acknowledges and agrees that ICC is reselling these products and will neither provide a related warranty nor assume any liability. Customer shall abide by all terms and conditions governing the use of these products.
Customer shall not eradicate, modify, or obscure copyrights, trademarks, or other proprietary rights notices that appear on materials made available by ICC. Customer shall not use any services or materials provided by ICC after expiration or termination of order under which they were provided.
1.6. Subcontractors (Affiliates):
ICC may use affiliates and third-party service providers to perform all or part of services, but ICC remains responsible under order for services performed by any affiliate or third-party service provider to the same extent as if ICC performed the services.
2. FEES AND PAYMENT TERMS
Customer shall pay to ICC all recurring and non-recurring fees for services and third- party products (“fees”) as set forth in applicable invoices. ICC can increase fees for services provided under with thirty (30) days’ advance notice, for services provided : 1) on a monthly basis, ICC may increase fees effective the first day of the following month after the notice period; and 2) for a term of more than one month, ICC may increase fees for services provided under an order as of the first day of the next renewal term.
2.2. Bandwidth Fees:
Bandwidth usage for bundled bandwidth packages related to Internet data transfers will be calculated based upon outgoing bandwidth transfer only. If Customer’s actual data transfer usage exceeds the amount of Customer’s bandwidth package, Customer will be charged a bandwidth overage Fee as specified in the applicable Order. When using the ICC provided Content Delivery Network (“CDN”), Customer is responsible for all bandwidth costs associated with the delivery of content over the public Internet, including any content delivery caused by unauthorized use of Customer’s CDN connection. ICC will not enable “hotlinking” capability by default. In the event “hotlinking” capability is activated at Customer’s request, Customer remains responsible for all network usage.
2.3. Payment Terms:
Unless other payment methods are approved, ICC will charge the customer via PayPal, without an invoice. If another method of payment has been approved, ICC shall notify the customer of its monthly invoice via email within two (2) days after invoice date to the email address(es) designated on page one (1) of this Agreement (“billing email address”). Customer must provide ICC thirty (30) days’ written notice of any changes to billing email addresses. Customer waives the right to dispute charges not disputed within the thirty (30) day period. Billing commences on the first day services are made available to a customer. Monthly recurring charges are invoiced monthly. Non-recurring charges will be included on the invoice for the applicable installation or Service changes as directed by Customer.
2.4. Late Payments:
ICC may suspend all services provided to a customer upon failure to pay fees when due. In addition, if an undisputed amount is not paid when due, ICC may impose a late charge in an amount equal to one and one-half percent (1.5%) (or the maximum legal rate, if less) of the monthly unpaid balance. If a payment is received by ICC and is returned for insufficient funds or bank charges, customers shall reimburse ICC for all associated processing charges plus a late charge to the extent applicable. If non-disputed payments are received late or returned due to insufficient funds over three (3X) times annually, ICC may require the customer to establish a deposit and or have them pay with guaranteed funds. Customer will reimburse ICC for all expenses the latter incurs, including reasonable attorney fees, in collecting any amounts past due under this agreement.
2.5. Credit Approval and Deposit
Customer acknowledges that delivery of services is subject to continuing approval by ICC of customer’s creditworthiness. Customer shall furnish financial information as ICC might occasionally make such requests to determine customer’s creditworthiness.
2.6. Taxes and Assessments:
Customer is responsible to pay for all governmental assessments, surcharges, and fees pertaining to its use of services (besides taxes on ICC’s net income). ICC shall not invoice customer for taxes if the latter provides the former with (and maintains) valid and properly executed certificate(s) of tax exemption. Such certificates of exemption must be reasonably acceptable to ICC. Customer is responsible for all taxes until a valid certificate of exemption is provided to ICC. If Customer fails to maintain required tax exemption certificate(s), ICC shall back-bill Customer for applicable taxes. The process for maintaining this information is described in “Updating Your Account Profile”.
All shipments of third-party products by ICC to customer are ex works (EXW) at point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from ICC to customer’s point of delivery are the latter’s responsibility. Customer grants ICC a security interest in and to third-party products as security for payment in full of the purchase price. Customer authorizes ICC to file and/or record documents deemed necessary to make this security interest reasonably solid.
Except as otherwise provided herein or in the applicable SLA, Customer is not entitled to refunds for any services purchased hereunder. Note that setup fees are non-refundable.
3. CUSTOMER RESPONSIBILITIES
3.1. Equipment, hardware, and software:
3.1.1. Customer is responsible to install, operate, and maintain hardware or software not provided by ICC and will ensure said items are up to date. ICC bears no responsibility for the transmission or reception of information by such items.
3.1.2. Customer is responsible for selection, use, and compatibility of hardware or software not provided by ICC. If hardware or software not provided by ICC impairs Customer’s use of services, the latter remains liable for payment of services. If ICC notifies Customer that hardware/software not provided by ICC is causing or could cause harm, interference, or service obstruction, customer must eliminate such, and ICC may suspend provision of service until this occurs. If requested by Customer, ICC may (at current rates) assist with resolving technical difficulties caused by third-party hardware/software. If any changes in service cause hardware/software not provided by ICC to become obsolete, require modification or alteration, or otherwise affect related performance, Customer assumes responsibility to modify, alter, or replace such items.
3.1.3. If Customer may not install or otherwise implement their own equipment to interface with services.
3.1.4. For the sole purpose of enabling Customer to use services, ICC grants the latter a non-exclusive and non-transferable license to use software that may be provided with or included in such services. ICC or its suppliers retain title and property rights to ICC-provided software and equipment, whether or not embedded in or attached to customer’s hardware. Customer neither owns nor will acquire claims or rights of ownership to: 1) any ICC-provided equipment not purchased by customer; 2) any software — including original media and all subsequent copies of software, regardless of media form, including product keys provided by third parties whereby keys are for customer’s exclusive use and continued use of such keys beyond termination of any service order or this agreement is prohibited — and associated documentation, including copies; and 3) IP addresses assigned to customer.
3.1.5. ICC takes responsibility to maintain its software and hardware in accordance with the terms of this agreement. Customer agrees not to open, alter, misuse, tamper with or remove software and equipment required to operate service. Customer will safeguard equipment from loss or damage, and will only permit authorized representatives of ICC to work on the equipment.
Customer shall obtain all applicable licenses, permits and approvals for the use of services or third-party products required by any governmental agency, foreign or domestic, having jurisdiction over the transaction. Customer and its users shall use services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws related to unsolicited commercial electronic messages.
3.3. Acceptable Use:
Customer is responsible for all acts and omissions of its users in connection with receipt or use of services, and customer and its users shall at all times abide by ICC’s “Acceptable Use Policy”. Customer will not use services or third-party products for life support, life sustaining, nuclear, or other applications in which failure of such services or third-party products could have the potential to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that ICC is not liable, in whole or in part, for any claim or damage arising from use of services or third-party products in such applications.
4. DATA PROTECTION AND SECURITY
4.1. Customer Data:
Customer is solely responsible for the security and content of all customer data stored in ICC’s hosted environment and any data, applications or third party services run in or through the ICC provided environment (”customer data”), and customer data is and at all times shall remain customer’s exclusive property.
4.2. Legal Requirements:
Customer is solely responsible for determining whether any customer data storage must comply with any law, standards, and policies, including without limitation, those related to data privacy and security (collectively referred to herein as “legal requirements”) and ensuring that customer data does comply with all applicable legal requirements. Customer acknowledges and agrees that ICC has no way to review customer data.
Customer shall encrypt at the application level all sensitive customer data. “Sensitive customer data” means that which is required to be treated as confidential under state or federal law or under customer’s contractual obligations to others’ information. Customer shall promptly notify ICC when becoming aware of any data breach or unauthorized access to ICC’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with ICC’s investigation and resolution of the reported breach or unauthorized access. Notwithstanding the foregoing, Customer acknowledges and agrees that ICC makes no representation or warranty regarding the security of its services.
4.4. Access and Use:
ICC is not responsible to Customer for unauthorized access to the latter’s data or unauthorized use of services through authorized or unauthorized access provided by Customer to third parties. Customer is responsible for the use of services by any of customer’s employees, affiliates, officers, directors, shareholders, agents or representatives, or any other third party given access to services, and any third party who gains access to customer data or services as a result of Customer’s failure to use reasonable security precautions, even if such access was not authorized by Customer.
Customer is responsible to maintain backups for all its data on ICC servers. In the event ICC provides backup assistance on its servers, it is provided, without additional charge, as a courtesy (“courtesy support”) to Customer. ICC has no liability for any lost or corrupted customer data resulting from the provision of courtesy support.
4.6. HIPAA and HITECH Act:
Customer shall immediately notify ICC if any data in the applicable service environment includes protected health information (“PHI”), as that term is defined under Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, as amended. If data does include PHI, Customer and ICC shall enter into a business associate agreement (“BAA”).
4.7. Payment Card Industry:
Data Security Standards (“PCI-DSS”): If, as necessary to perform its obligations under the agreement, ICC possesses or otherwise stores “cardholder data” (as that term is defined by the Payment Card Industry Data Security Council on behalf of customer, ICC and customer agree that each party is responsible, as may be designated in the applicable service description, for those certain PCI-DSS requirements as applicable.
4.8. EU General Data Protection Regulation:
Customer shall notify ICC if it intends to use the latter’s services with customer data that is subject to protection under General Data Protection Regulation 2016/679 (“GDPR”). Such notification shall require the parties execute a data protection addendum (“DPA”) under which ICC will be a processor and customer the controller as those terms are defined under GDPR. Customer may not utilize any services with its own data that is subject to GDPR protection until such time as the parties have executed a DPA.
4.9. California Consumer Privacy Act:
If, as necessary to perform its obligations under the Agreement, ICC possesses or otherwise stores “personal information” (as that term is defined by the California Consumer Privacy Act of 2019 (“CCPA”)) made available by customer, ICC certifies that it understands restrictions set forth in Section 1798.140(w)(2)(A) of the CCPA, and that it will comply. ICC will not sell any personal information provided or otherwise made available by customer, nor will ICC retain, use, or disclose any such personal information for any purpose, including for commercial purposes, other than to provide services specified in the agreement or as otherwise permitted by applicable law. Unless prohibited by applicable law, ICC shall, as soon as is reasonably practicable, forward to Customer all requests received from individuals wishing to exercise their rights under the CCPA. ICC’s only response to individual requests shall be to inform the individual that such request has been passed along to the appropriate party, unless otherwise required by the CCPA. If requested by Customer, ICC shall reasonably assist customer, at the latter’s expense, in complying with customer’s obligations under CCPA.
5. REPRESENTATIONS, WARRANTIES, AND COVENANTS
5.1. Mutual Representations and Warranties:
Each party represents, warrants and covenants that, as of the effective date and continuing throughout the term of this agreement:
5.1.1. It is an organization duly formed, validly existing and in good standing under the laws of the state in which it is formed, and in good standing in each other’s jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder.
5.1.2. It has all necessary organizational power and authority to enter into this agreement and each order and to perform its obligations hereunder, and the execution of this agreement and each order and consummation of the transactions contemplated thereby have been duly authorized by all necessary organizational actions on its part.
5.1.3. This agreement constitutes a legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
5.1.4. It shall comply with all laws in connection with services and otherwise under this agreement.
5.2. ICC Representations, Warranties, and Covenants:
ICC represents, warrants and covenants that:
5.2.1. It will perform services in a diligent, professional fashion using an appropriate number of properly trained and qualified individuals.
5.2.2. It will provision services to operate within the technical standards of performance or service levels, if any, set forth in the applicable service description, SLA, or order. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable service description, SLA, or order.
5.2.3 ICC is not responsible for any damages your business may suffer. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by us and our employees. Customer agrees that content provided by us for download to your computer or to other devices may not be error free, and that you are solely responsible for damage incurred to devices or loss of data as a result of such download.
5.3. Disclaimer of Warranties:
Customer assumes total responsibility for use of services, third-party products, and any applicable equipment. ICC has no responsibility for the security, loss, intrusion or unauthorized access of stored data or any loss or damage caused by any action, omission or failure to comply with the terms of this Agreement by Customer. All products and services provided or otherwise made available by ICC are provided on “as-is” bases, and ICC makes no warranty to customer or any other person or entity, whether express, implied, or statutory, including, without limitation, the implied warranties of non-infringement, merchantability and fitness for a particular purpose, as to any service, third-party product, or equipment provided hereunder or described herein, or as to any other matter, all of which warranties by ICC are hereby excluded and disclaimed.
6. CONFIDENTIAL INFORMATION
As to any particular Confidential Information, the “discloser” is the party disclosing confidential information and the “recipient” is the party receiving said information. “Confidential information” (whether tangible or intangible, printed, electronic, or otherwise) and items embodying information (including graphs, photographs, samples, working models, and prototypes) at any time furnished by discloser to recipient or to which recipient is exposed during the term of this agreement, including, without limitation: 1) information concerning discloser’s business and business plans; 2) financial information concerning discloser and its affiliates; 3) information concerning discloser’s pending patents or other trade secrets; 4) discloser’s sketches, drawings, designs, and specifications; 5) discloser’s concepts, ideas, inventions, know-how, processes, apparatuses, equipment, algorithms, and formulas; and 6) information from third parties that discloser is obligated to treat as confidential. Customer proprietary network information (“CPNI”), as defined by United States Code 47 U.S.C. § 222(h) (1), shall be considered to be confidential information of customer. Customer’s data stored at ICC’s data center(s) or stored on or processed on ICC’s systems shall be considered to be confidential information. All other confidential information provided in written or electronic form must be clearly marked “confidential.” In the case of confidential information provided orally, a written memorandum of such information clearly marked “confidential” must be delivered to recipient within thirty (30) days of the disclosure.
6.2. Restrictions on Use; Non-Disclosure:
Except as otherwise expressly permitted in writing by an authorized representative of discloser, recipient agrees that it will not: 1) use the confidential information of discloser for any purpose other than the purpose for which discloser disclosed such information; or 2) disclose or reveal confidential information of discloser to any person or entity other than its employees, directors, officers, and consultants who have a need to know to further the purpose of this agreement and are subject to legally binding obligations of confidentiality and are no less restrictive than those contained in this agreement. During the term of this agreement, Customer will designate an account representative who has the authority to request customer’s CPNI under this agreement through its dedicated ICC account representative.
The obligations set forth in Section 6 above shall not apply to confidential information that: 1) before the time of its disclosure was already in the lawful possession of the Recipient; 2) at the time of its disclosure to recipient is available to the general public or after disclosure to recipient by discloser becomes available to the general public through no wrongful act of the recipient; or 3) recipient demonstrates to have been lawfully independently developed by recipient without the use of or reliance upon any confidential information of the discloser and without any breach of this agreement. In the event customer and ICC enter into a separate non-disclosure agreement (“NDA”), then such NDA shall be incorporated into this agreement by reference herein, and if any terms and conditions of such NDA are in conflict with the terms and conditions herein, then the NDA shall supersede the confidentiality terms and conditions in this Section 6, excluding ICC’s CPNI obligations as defined herein.
6.4. Ownership; No License:
Each party shall retain ownership of all rights, including all intellectual property rights, in its confidential information. Nothing in this agreement shall be deemed, by implication or otherwise, to convey to recipient any right under any patent, patent application, invention, or other proprietary right owned by discloser or anyone associated with discloser.
6.5. Disclosures Required by Law:
If recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any confidential information, then recipient shall notify discloser of the requirement promptly in writing (if legally permitted) so that discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if discloser waives in writing compliance with the terms hereof, then recipient shall furnish only that portion of the information which recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
Obligations set forth in Section 6 shall survive termination of this agreement for a period of three (3) years.
6.7. Disposal of Confidential Information:
Recipient agrees to return to discloser all copies of confidential information promptly upon discloser’s request at any time. If return is impossible as to any portion of the confidential information, then recipient shall certify to discloser promptly that all such confidential information of discloser, including all copies thereof, has been totally and permanently destroyed.
Parties acknowledge and agree that a breach of this Section 6 by either party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that discloser shall therefore be entitled, in the event of any actual or threatened violation of this section by recipient, and in addition to any other remedies available to it, to a temporary restraining order and to injunctive relief against the other party to prevent any violations thereof, and to any other appropriate equitable relief.
7.1. Indemnification by ICC:
ICC shall indemnify, defend, and hold harmless customer and its officers, directors, agents and employees from and against any and all demands, causes of action, losses, damages, fines, penalties, and claims, and all related costs and expenses (including reasonable attorneys’ fees) (collectively referred to as “losses”) arising any third-party claim that customer’s use of the services not in violation of this agreement infringes or misappropriates any valid, U.S. Patent, copyright, or trade secret of such third party. In addition to ICC’s indemnification obligations set forth in section 7.1, in the event of a claim or threatened claim under 7.1 by a third party, ICC may, at its sole option: 1) revise services up to and including termination of this agreement upon ten  days’ notice so that they are no longer infringing; 2) obtain the right for company to continue using the services; or 3), in the event neither of the foregoing are reasonable, terminate this agreement and refund to customer a pro-rata amount of any prepaid services not yet received as of date of termination. Section 7.1 represents the sole and exclusive liability of ICC and the exclusive remedy of customer related to any infringement or misappropriation claims of a third party.
7.2. Indemnification by Customer:
Customer shall indemnify, defend and hold harmless ICC and its officers, directors, agents, and employees, from and against any and all losses arising out of or in any manner relating to: 1) violation of any law by customer; 2) any claim for withholding or other taxes that might arise or be imposed due to this agreement or the performance hereof; 3) damage to property or personal injury (including death) arising out of gross negligence or willful acts or omissions of customer; or 4) claims by a third party arising out of or related to the use or misuse of any service or third-party products.
7.3. Indemnification Procedure:
Any party seeking indemnification under this section shall promptly, and in writing, notify the other Party of any claim as to which it intends to seek indemnification under this agreement, and shall take such action as may be necessary to avoid default or other adverse consequences. The indemnified party shall cooperate and participate with its personnel as required for defense at the cost and expense of the indemnifying party.
8. LIMITATIONS OF LIABILITY
8.1. Limit on Types of Damages Recoverable:
Neither party nor its affiliates, subsidiaries, employees, contractors, or suppliers, shall be liable to the other party or any other third party for any incidental, consequential, special, indirect, or punitive damages (including, without limitation, lost profits, lost revenues, and loss of business opportunity) that the other party may incur or experience in connection with this agreement or the services, however caused and under whatever theory of liability (including, without limitation, strict liability and negligence), even if such party has been advised of the possibility of such damage. In no event shall ICC be liable for any damages related to any third-party product.
8.2. Limit on the Amount of Damages Recoverable:
Except as may be provided in an applicable SLA, ICC’s liability to customer and its respective officers, directors, employees, agents, contractors, successor and assigns arising under or related to this agreement and services provided hereunder shall be limited in all cases to direct damages which shall not exceed the amount of fees paid by customer under the applicable order for the services during the six (6) month period immediately preceding the event giving rise to the claim for damages.
8.3. No Liability for Certain Actions:
ICC shall not be liable to customer for any claims or damages resulting from or caused by: 1) unauthorized access to transmission facilities or premises equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method where such unauthorized access is due to customer’s fault, negligence or failure to perform customer’s responsibilities; 2) customer’s fault, negligence or failure to perform Customer’s responsibilities; 3) claims against customer by any other party; 4) any act or omission of any other party; or 5) equipment or services furnished by a third party. ICC is not responsible for customer data or the content of any other information transmitted or received through services.
8.4. Limitation of Actions:
Neither party may bring any action, regardless of form, arising out of or relating to an order or this agreement more than three (3) months from the date on which the cause of action arose.
This agreement shall commence on the effective date and continue until the last order expires or is terminated, unless this agreement is sooner terminated in accordance with the terms of Section 10 (termination) below.
9.2. Service Term:
An individual services term shall commence on the effective date and continue for the period of time specified on its order (“initial term”), unless sooner terminated in accordance with the terms of Section 10 (termination) below. Thereafter, the agreement will automatically renew for successive one-year periods, or, if no such term is specified, the agreement shall continue in effect on a month-to-month basis at then current month-to-month rates (“renewal term”) unless either party provides the other with written notice of its intention not to renew at least thirty (30) days before expiration of the initial term. The initial term and renewal onr are sometimes individually and collectively referred to as the “service term.”
10.1. Termination for Cause:
Either party shall have the right to terminate this agreement and/or any order upon written notice to the other party:
10.1.1. If the other party defaults in the performance of any of its material obligations under this agreement and such default continues for a period of thirty (30) days after receipt of written notice specifying the nature of the breach. In the case of nonpayment of fees, the cure period shall be ten (10) days.
10.1.2. If the other party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization (individually or collectively “bankruptcy proceedings”). For the avoidance of doubt, such bankruptcy proceedings shall not be subject to a cure period as described in Section 10.1.1.
10.1.3. If customer defaults in the performance of any of its material obligations under this Agreement and fails to cure such default within the cure period specified above, ICC may at its sole option do any or all of the following: 1) cease accepting or processing orders and/or suspend services; 2) cease all electronically and manually-generated information and reports; 3) draw on any letter of credit, security deposit or other assurance of payment and enforce any security interest provided by customer; 4) terminate this agreement and/or the applicable order; or 5) pursue such other legal or equitable remedy or relief as may be available to ICC. A nonpayment or other default by customer resulting in the termination of the agreement and/or applicable order, shall entitle ICC to collect from Customer the applicable early termination charges as described under Section 10.4, in addition to pursuing any other available remedy.
10.2. Termination for Convenience:
Customer shall have the right to terminate any order at any time for convenience by providing thirty (30) days’ written notice to ICC and paying the latter early termination charges specified in Section 10.4 below. Termination shall be effective and the affected services will be discontinued within thirty (30) days after ICC receives the completed termination notice.
10.3. Change in Regulatory Requirements:
If a national communications commission, a public utility, service commission or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of canceling, changing or superseding any material term or provision of this agreement (“regulatory requirement”), then this agreement shall be deemed modified in such a way as the parties mutually agree is consistent with the form, intent or purpose of this agreement and is necessary to comply with such regulatory requirement. Should the parties be unable to agree on modifications necessary to comply with a regulatory requirement within thirty (30) days after the regulatory requirement is effective, then upon written notice, either party may, to the extent practicable, terminate that portion of this agreement impacted by the regulatory requirement, or if the entire agreement is impacted, either party may terminate the agreement with no further obligation or liability hereunder, and customer shall not be liable for an early termination charge hereunder.
10.4. Early Termination Charge:
If services are cancelled or terminated prior to the expiration of the service term for any reason other than: 1) by customer in accordance with the terms of the Order or Section 10.1, then customer shall pay ICC an early termination charge equal to:
10.4.1. for flat rated services: one hundred percent (100%) of the monthly recurring charges for services multiplied by the number of months remaining in the service term;
10.4.2. for prepaid services: one hundred percent (100%) of the prepaid amount;
10.4.3. any non-recurring fees ICC incurs from other suppliers in connection with cancellation of the Services; and
10.4.4. any outstanding invoices still owed by Customer. Such payment shall be due within sixty (60) days of termination.
In addition to the rights and remedies set forth in this agreement, ICC may suspend some or all of the services without liability to customer if: 1) customer fails to pay the applicable fees for services when due; 2) ICC determines that services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of this agreement; 3) customer fails to cooperate with an investigation of any suspected breach of this agreement; 4) ICC reasonably believes that services have been accessed or utilized in any way by a third party without customer’s consent; or 5) suspension of services is reasonably necessary to protect ICC’s hosting environment. ICC will use commercially reasonable efforts to provide customer advance notice of a suspension and a chance to cure the violation on which the suspension is based, unless ICC determines, in its reasonable judgment, that an immediate suspension is necessary to protect ICC’s network and its customers’ from an imminent, significant operational, network integrity or security risk. Suspensions based on customer’s breach of this agreement will not relieve customer’s obligation to pay for suspended services during the period of suspension. Any suspension imposed under this section will be lifted upon customer’s cure of the breach causing the suspension. In the event customer is unable to cure the breach within fifteen (15) days of notice from ICC, the suspension may be treated as a termination for cause. During the suspension period, ICC shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. ICC may at its own discretion allow access to a suspended account.
11. GENERAL PROVISIONS
Except as otherwise provided herein, neither party will use the other’s name, logo or service marks, for any purpose, including press releases, without the other party’s prior written consent. Notwithstanding the foregoing, customer may use ICC’s name and logo to positively publicize that it uses ICC’s Services, and ICC may include customer’s name in its customer list, website, partner portal, and publications.
11.2. Assignment and Binding Nature:
Customer shall not assign, voluntarily or by operation of law, any of its rights or obligations under this agreement without the prior written consent of ICC. ICC may upon prior written notice to Customer, assign all of its rights and obligations under this agreement to any entity which affects a merger transaction with ICC or otherwise acquires all or substantially all of the capital stock or assets of ICC. Subject to the foregoing, this agreement shall be binding on the parties and respective successors and assigns.
Except as otherwise provided herein, any notice or other communication between the parties hereto regarding matters contemplated by this agreement may be sent by registered mail, commercial courier, or email. Any written notice required to be sent under Section 10 (Termination) must be sent by U.S. mail (first-class, airmail, or express) or commercial courier. Notices shall be sent to: ICC, Suite 606, 211 Itaewon-ro, Yongsan-gu, Seoul, R.O.K. 04349, and notices to customer shall be sent to the contact information set forth in customer’s order, or at such other addresses as either party may designate in writing.
ICC may update, modify, add, or delete this agreement at any time and such update shall be reflected on ICC’s website. Customer’s continued use of services following any change to the agreement constitutes acceptance of the agreement.
11.5. No Third-Party Beneficiaries:
Nothing in this agreement creates, or will be deemed to create, third-party beneficiaries of or under this agreement. Customer agrees that ICC has no obligation to any third party by virtue of this agreement.
11.6. Relationship of Parties:
Nothing contained in this agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the parties. Neither party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party or to bind such other party in any way. Each party shall be responsible for the actions of, and its obligations to, its own personnel, contractors, and subcontractors including obligations relating to the following, as applicable: payments, wages, taxes, withholding, insurance (including, without limitation, workman’s compensation), and hours and conditions of employment.
11.7. Force Majeure.
Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control, including, but not limited to: 1) Acts of God, fire, flood, storm, explosion, terrorism, vandalism, or other similar catastrophes; 2) any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; 3) national emergencies, insurrections, riots, wars; 4) unavailability of rights- of-way or materials; or 5) strikes, lock-outs, work stoppages, or other labor difficulties [“force majeure event”]. In the event ICC is unable to deliver any service as a result of a force majeure event, Customer shall not be obligated to pay ICC for the affected service for so long as ICC is unable to deliver that service.
11.8. Legal Expenses:
If any action or other proceeding is brought for the enforcement of this agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this agreement, the successful or prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
The failure by any party to this agreement to insist upon strict performance of any provision of this agreement will not constitute a waiver of that provision. All waivers must be in writing to be enforceable hereunder.
The descriptive headings of this agreement and of any service description or exhibit under this agreement are for convenience only and shall not affect the construction or interpretation of this agreement. As used herein, “Include” and its derivatives (“including”, “e.g.”) shall be deemed to mean “including, but not limited to.” Each party acknowledges that this agreement has been the subject of active and complete negotiations, and that this agreement should not be construed in favor of or against any party by reason of the extent to which any party or its professional advisers participated in the preparation of this agreement.
If any provision of this agreement shall be declared invalid, illegal or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and such declaration shall not affect the remaining provisions of this agreement. In the event that a material and fundamental provision of this agreement is declared illegal, invalid or unenforceable under applicable law, the parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each party under this agreement as originally executed.
11.12. Executable by Electronic Means
This agreement may be executed in two or more counterparts (including by means of faxed or emailed signature pages), each of which will be deemed an original, and all of which together will constitute one and the same instrument. Photocopies, facsimile transmissions, and other reproductions of this executed original (with reproduced signatures) will be deemed original counterparts of this agreement. The parties consent and agree the agreement and any order may be entered electronically by way of electronic signatures (for example, by electronically clicking a box confirming agreement or utilizing third-party software), and any such electronic signatures shall be binding and treated as original signatures. In the event ICC requires a correction or clarification to an executed order prior to the service’s first day of availability, an email communication from customer may be utilized as an acceptable method of approval for any such correction or clarification and shall be incorporated as part of the order
11.13. Governing Law; Jurisdiction:
This Agreement shall be governed by and interpreted according to the laws of the Republic of Korea (without regard to its conflict of law principles), and the Parties hereby consent to the exclusive jurisdiction of ROK courts to adjudicate any dispute arising under or in connection with this Agreement. Any such dispute shall be brought before the courts with jurisdiction over Seoul, Republic of Korea. The Parties hereby waive any objection based on inconvenient forum.
Subject to the terms set forth in this agreement, ICC hereby incorporates by reference those provisions of its tariffs that govern the provision of any of the services or facilities provided hereunder. If any provision of this agreement and an applicable tariff cannot be reasonably construed or interpreted to avoid conflict, the provision contained in this agreement shall prevail.
11.15. Entire Agreement:
This agreement, together with all service descriptions and orders, embodies the entire agreement and understanding between ICC and customer with respect to the subject matter of this agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this agreement.
Each party’s obligations under Section 5 (representations, warranties, and covenants), Section 7 (indemnification), and Section 8 (limitation of liability) shall survive the expiration or termination of this agreement.