TERMS OF SERVICE
NEWTEK WEB SERVICES Terms of Service: Newtek Web Services Agreement ("Agreement"): The terms and conditions set forth herein constitute the full and complete Agreement between You, Your heirs, agents, successors and assigns ("You" or "Your") and Newtek Web Services, Inc. ("Newtek Web Services"). Your agreement to be bound by the terms contained herein is acknowledged by your use of the Newtek Web Services Web Site, Hosting Services, Support Services and/or any Newtek Web Services software, service, or product made available to you. This Agreement as well as any additional Newtek Web Services policies, together with all modifications thereto, constitutes the complete and exclusive agreement between you and Newtek Web Services concerning your use of Newtek Web Services products and/or services. The terms contained in this Agreement supersede and replace any other agreement or negotiation between you and Newtek Web Services whether oral, written or otherwise including any statements made by any representative of Newtek Web Services at any time. By purchasing and/or using Newtek Web Services goods and/or services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, modifications, conditions or policies which Newtek Web Services may establish and/or revise at any time, and any agreements that Newtek Web Services is currently bound by or will be bound by in the future. You agree that Newtek Web Services may modify this Agreement from time to time. You agree to be bound by any changes Newtek Web Services may make to this Agreement as of the date in which such changes are made. You agree that Newtek Web Services shall not be bound by any representations made by third parties who you may use to purchase goods and/or services offered by CrystalTech. PAYMENT OF FEES Payment shall be made to Newtek Web Services in U.S. dollars only. Payments are due upon account activation and future account renewal, and may be made through the use of a valid credit card, personal/business check or money order. Payment for services shall be made monthly if paid via credit card, and quarterly if paid via check or money order. Billing will continue to occur automatically until you request cessation of service. If shortfalls in payment to Newtek Web Services of the full invoice amount occur due to bank fees, transfer fees, or the like, Newtek Web Services will re-invoice you for the shortfall. Should payment in full of any invoice (aside from the shortfalls mentioned above) not be received by Newtek Web Services within thirty (30) days after account activation or renewal, Newtek Web Services, at its sole discretion, may discontinue, withhold or suspend services to You. Cancellations of service must be made via telephone (Toll-Free at 877.323.4678, Arizona or International at 602.263.0300, and select the Sales extension), and cannot be made without first verifying your correct Customer ID (provided by CrystalTech) and account password (created by you) at time of setup. All information stored on the Newtek Web Services network that was placed there by you or is a result of you using the services provided by Newtek Web Services is deleted after a period of approximately 15 days from the date of cancellation. Therefore, should you require a copy of said information; you should take steps necessary to retrieve that information prior to cancellation of services. Should you fail to retrieve such information, and should you require a copy of said information after the date of cancellation, it is possible that Newtek Web Services can provide the information to you for an additional fee (to be determined at the time of request but could include data restoration and custom service fees). However, Newtek Web Services does not guarantee that it will be able to provide the information to you after the date of cancellation. Should you attempt a chargeback for services knowingly purchased from Newtek Web Services, Newtek Web Services shall immediately shut off services to you and will pursue full legal recourse against you to recoup any and all losses. If a chargeback occurs as a result of an error by you, a $20 fee will be assessed on top of the full chargeback amount. Setup fees for any services or plans, are not refundable, regardless of the length of time the service or Plan is used by you. Should you follow standard procedures and cancel services with Newtek Web Services, You are entitled to a refund equivalent to the length of time that has been paid for, but not used. This refund is calculated based on a daily rate, depending on the Plan that was ordered. "Free Months" are not taken into account when calculating a refund. Billing Cycle: the Billing Cycle for any and all services shall commence the day the services/plans were ordered. Newtek Web Services cannot, for any reason, change the Billing Cycle for a Plan or service. You are responsible for providing Newtek Web Services with the proper and correct Billing and Payment Information. In addition, you are responsible for keeping all contact information; especially email addresses, up to date and current. Newtek Web Services conducts all communication with you via email, including support, billing and network administration communication. You agree to accept all communications from Newtek Web Services via email, including support, billing and network administration communication. Therefore, a current and active email address for all pertinent parties is absolutely essential. Any and all fees incurred due to incorrect Billing and/or Payment information are the sole responsibility of you. You have access to any and all information on file, and therefore have every opportunity to keep this information current, via the Newtek Web Services WebControlCenterTM (https://www.webcontrolcenter.com/customer.aspx). Changes to services provided to you must be submitted in writing via the WebControlCenterTM. Upgrades are charged a setup fee of the difference between the setup fees of the two plans (the old plan and the upgraded plan), and a prorated fee for the difference in plan prices for any time that was paid for in advance. Downgrades receive a prorated credit for any time paid for in advance, but no credit is given for any initial setup fees. You are responsible for, and must be aware of, what will be gained and/or what will be lost in changing plans. Newtek Web Services is not responsible for lost files, data and/or information due to changes in plans. Sites that have been shut off for 15 days are deleted from our servers (except for sites that are ordered using an unauthorized payment method or ordered under false pretenses, which are deleted 5 days after being shut off). If a site has been deleted, and you desire to reactivate a deleted site, you will need to order a new plan and you will be held responsible for ensuring you have adequate backups/copies of your site. Newtek Web Services is not responsible for your failure to use the services/plans offered by CrystalTech. You have the right to cancel the services/plans that you have purchased at any time. Therefore, non-use of the services/plans offered DOES NOT constitute a cancellation of said services/plans. Additional Fees: You agree that use of the Services hereunder will not exceed any usage limits/allocations set forth under your particular Plan details. If You do exceed any of the specified usage limits/allocations, Newtek Web Services may, at its sole discretion, assess You with additional charges (where those additional charges for Shared Hosting are listed under Additional Features on the Shared hosting pages of the Newtek Web Services website - additional charges for Dedicated Hosting are listed under the "Server Options" heading on each dedicated hosting plans page), suspend the performance of the Service or terminate this Agreement. In the event that Newtek Web Services elects to take any corrective action, you may not be entitled to a refund of any unused pre-paid fees. If Newtek Web Services collects any payment due at law or through an attorney at law or under advice from a collection agency, or if Newtek Web Services prevails in any action to which You and Newtek Web Services are parties, You will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Newtek Web Services reasonable attorney and collect agency fees. Payment by Check, Money Order Prior to activation of your user account you agree to submit a check payable in U.S. dollars against a bank located within the United States. Newtek Web Services is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by CrystalTech. Invoices will be submitted to the email address on file for you as a courtesy only and you agree to receive such invoices via email. Payment for subsequent fees is due 30 days from date of invoice. It is your responsibility when paying by check to make sure that your payment is received by CrystalTech. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole discretion of CrystalTech. WEB HOSTING SERVICES For the term of the agreement as set forth herein Newtek Web Services agrees to provide Web Hosting Services according the plan selected. Newtek Web Services reserves the right to change, amend and/or otherwise alter the services provided with equivalent services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the Newtek Web Services website at the time the payment for new services are received by CrystalTech. The specifics of all current offers are located within the Newtek Web Services Website located at www.Newtekwebservices.com . Web Hosting Services shall be defined, in a general form, as server space and data transfer allowances for the purposes of displaying a business or personal website. For Dedicated Customers: You have the ability to install custom software on the server You lease from Newtek Web Services as long as You have the proper licensing in place for the use of said software. In most cases, Newtek Web Services will request proof of ownership and licensing of said software prior to approving the software for installation. Should you send Newtek Web Services original copies of licensing and/or software in any form (paper, compact disc, etc.), Newtek Web Services shall not be held responsible for the storage and/or safekeeping of the licensing and/or software. In addition, should you send to Newtek Web Services media required for the installation of software, in any form, you are responsible for paying for any and all postage and/or shipping fees associated with the shipment and return of said media? DOMAIN REGISTRATION AND OTHER SERVICES At Your request, Newtek Web Services may also acquire a Second-Level Domain Name ("Domain Name"), on your behalf. Newtek Web Services will not own or otherwise control any domain name registered on your behalf under this paragraph. Newtek Web Services provides this service as a convenience to You only and You hereby waive any and all claims which You may have, or which may later arise, against Newtek Web Services for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. Any costs incurred by Newtek Web Services to obtain and/or maintain the Domain Name on Your behalf shall be charged to you by CrystalTech. Domain Registration through CrystalTech: You are responsible for checking on the availability of any domain name associated with any of the services offered by CrystalTech. You are also responsible for correctly entering any and all domain information (this includes, but is not limited to, the spelling of the domain, proper domain extension, etc.) during the course of ordering any services offered by CrystalTech. Newtek Web Services is not responsible for domain name availability. If a Plan is built by Newtek Web Services using an unavailable or incorrect domain name, you will be charged a $20.00 fee for any resulting corrections made by CrystalTech. Newtek Web Services does not, in any way, alter any domain information when building sites for you. Domain information is entered solely by you, and is, therefore, the sole responsibility of you. Domain Changes: If a Plan is ordered using an incorrect domain name, you will be invoiced for any and all fees incurred by Newtek Web Services in the proper registration/correction/completion of your order. These fees may include, but are not limited to, any administrative costs, domain registration costs and costs incurred in the correction of domain registration information charged by the domain Registrar. Special Provisions for .US Domain Registrations: You shall indemnify and hold harmless Newtek Web Services and Melbourne IT (d.b.a. Internet Names Worldwide), and its directors, officers, employees, representatives and agents from and against any and all claims, suits, actions, other proceedings, damages, liabilities, costs and expenses of any kind, including without limitation reasonable legal fees and expenses, arising out of or relating to Your .US domain name registration and use of any .US registered domain name. You certify that you meet the requirements to qualify to register to use a .US domain name as found on the Neustar website (Neustar oversees the .US Top Level Domain) located at http://www.neustar.us/policies/index.html. You further certify that both Newtek Web Services and Internet Names Worldwide have requested specific information regarding how you meet the requirements listed above and that you have willingly volunteered such information. You understand and agree that such information will be verified and will be shared with the .US Registry. You further understand and agree that if such information cannot be verified, or if you fail to abide by the requirements listed above, the registered domain name shall be subject to immediate cancellation. Upon requesting the Newtek Web Services Private Registration Service You agrees to be bound by the terms of the Newtek Web Services Private Registration Policy which may be found on the Melbourne IT/INWW Website located at http://www.melbourneit.com. The terms of Private Registration Policy are incorporated into this agreement as though they were fully set forth at length herein. However, Newtek Web Services does NOT guarantee that the Terms and Conditions it provides is as current or up-to-date as the one provided on the INWW website as said Terms and Conditions are subject to change. You agree to maintain your registration information in full compliance with this agreement and the terms of the Private Registration Policy. Failure to so comply is cause for immediate suspension and/or termination. You agree to maintain current all Whois information for your domain name. Newtek Web Services will notify you when the domain registered through Newtek Web Services is due to expire. Newtek Web Services does not renew domain names automatically. You must request a renewal to renew any and all domain names. You are solely responsible for knowing the expiration dates required for renewal. Attempting to renew domain names after the expiration date are not guaranteed, and attempting to renew domain names after the expiration date may result in additional fees, whether or not such attempts to recover domain names from redemption are successful. Please note that registration, renewal, and private registration fees are not refundable. ACCEPTABLE USE Newtek Web Services strictly enforces compliance with its acceptable use policy. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and/or termination of your account at the sole discretion of CrystalTech. Newtek Web Services uses a third party to run security and vulnerability audits of their network. These audits include, but are not limited to, port scans, server configuration audits and other security and vulnerability checks that help ensure that the network Newtek Web Services manages is as secure as possible. At times, current or potential Newtek Web Services customers request to have their own audits run on the Newtek Web Services network. Newtek Web Services prohibits you as well as third parties from running any type of security audit or check of the Newtek Web Services network, apart from those audits or checks that are initiated by Newtek Web Services or that have prior written approval from CrystalTech. Unauthorized scans or checks of the Newtek Web Services network will be treated as an attack against the Newtek Web Services network and will be dealt with accordingly, including, but not limited to, immediate account termination and/or any legal recourse available. You shall agree to the following: - You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government. - You agree not to post any of the following types of content on your website, nor use your account in furtherance of any of the following: pornographic, obscene or excessively profane content, gambling, illegal drugs or illegal drug use. - You agree not to take any action which threatens, encourages or causes any harm to minors of any kind or to perform any activity which is likely to cause such harm or which assists any other person or group in doing so. - You agree not to take any action which encourages or consists of any threat of harm of any kind to any person or property or assists any other person or group in doing so. - You agree not use your account to or otherwise knowingly or otherwise permit the violation any provision of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM ACT) including the following: 1. a. False or Misleading Header Information 2. b. Deceptive Subject Lines 3. c. Failure to provide an opt-out method 4. d. Failure to identify the message as an advertisement 5. e. Failure to include a physical Postal Address - You agree not to use your account to encourage, facilitate, promote and/or include hate speech, racially offensive, ethnically offensive to groups of various sexual orientations and/or any other content or activity deemed inappropriate by Newtek Web Services, at its sole discretion, for any reason whatsoever. - You agree not to make or attempt any unauthorized access to any Newtek Web Services website or the website of any Newtek Web Services customer. - You agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software. - You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express consent. You shall maintain records of any such consent throughout the term of any agreement that you have with Newtek Web Services and for three years thereafter. - You agree not to undertake any action which is harmful or potentially harmful to the Newtek Web Services server structure. - You agree that the Newtek Web Services servers including the space occupied by your account is and remains the property of CrystalTech. Your limited licenses to use the service is not subject to lease, sublease or any other sharing or transfer without the specific, express consent of Newtek Web Services . You may not make Your account (including but not limited to web space, email accounts, bandwidth, storage space, or reseller rights) available to any third party in any way, including but not limited to the use of Sub Domains, Add-on Domains, Sub Directories, or by any other means. - You agree not to utilize "circular popups", "multiple popups" or any redirect, link or referral which creates an offensive or unpleasant user experience. - You agree not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise (a) any other customer of Newtek Web Services (b) any reseller of Newtek Web Services (c) any other person or (d) any employee or contractor of CrystalTech. - You agree at all times to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the Digital Millennium Copyright Act ("DMCA"). - You agree that Newtek Web Services will make the sole determination whether this policy has been violated. This policy may be amended by Newtek Web Services at any time without notice to you by posting the new policy in this location. Such new policy shall become effective immediately upon such posting for all accounts. It shall be your obligation to check this page regularly for updates to this policy. - You agree to maintain your website in full compliance with the terms of the acceptable use policy. Newtek Web Services reserves the right to refuse to provide service to anyone at their sole discretion, for any reason whatsoever. - For Dedicated Customers: You may not utilize, enable, upload or publicly store source code, executable code or programs on the Newtek Web Services network or servers that are designed to perform the following activities including, without limitation: (a) performing local/remote security vulnerability scans, (b) simulating local shell/OS access by means of a tunneled/encapsulated connection to a remote host, (c) circumventing firewall restrictions, (d) connecting to any IRC/Peer to Peer file sharing server/network, (e) providing tracker services to BitTorrent clients, (f) running any kind of proxy server (including anonymous proxies), and/or (g) exploiting any other vulnerabilities, as determined by Newtek Web Services in its sole discretion. LICENSE Newtek Web Services, subject to the terms and conditions set forth herein, hereby grants you a non-exclusive, limited, personal, license to use the Newtek Web Services Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express written approval by CrystalTech. Any other assignment is null and void. OWNERSHIP OF INTELLECTUAL PROPERTY Newtek Web Services owns all rights, titles and interests in Newtek Web Services intellectual property, including but not limited to: trade names, service marks, inventions, copyrights, trade secrets, patents and know-how relating to the design, function or operation of plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to you to use Newtek Web Services trade names or service marks. Your use of any intellectual property rights and/or Proprietary Information mentioned in this Agreement or otherwise owned or licensed by Newtek Web Services is limited to your use in connection with the Newtek Web Services Web Site, Hosting Services, Support Services and/or any Newtek Web Services software, service, or product made available to you. CONFIDENTIAL INFORMATION The parties acknowledge that each may disclose certain oral or written information in performing their respective obligations under this Agreement, which may be deemed to be the confidential and proprietary information of such party. As used herein, the term "Proprietary Information" includes any and all of the following information of Newtek Web Services and You that has been or may hereafter be disclosed in any form, whether in writing, orally, electronically or otherwise, or otherwise made available by observation, inspection or otherwise by either party or its representatives (collectively, a "Disclosing Party") to the other party or its representatives (collectively, a "Receiving Party"): All information that is a trade secret under applicable trade secret or other law; All information concerning product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer hardware, software and computer software and database technologies, systems, structures and architectures; All information concerning the business and affairs of the Disclosing Party (which includes historical and current financial statements, financial projections and budgets, tax returns and accountants' materials, historical, current and projected sales, capital spending budgets and plans, business plans, strategic plans, marketing and advertising plans, publications, client and customer lists and files, contracts, the names and backgrounds of key personnel and personnel training techniques and materials, however documented), and all information obtained from review of the Disclosing Party's documents or property or discussions with the Disclosing Party regardless of the form of the communication; and Notes, analyses, compilations, studies, summaries and other material prepared by the Receiving Party to the extent containing or based, in whole or in part, upon any information included in the foregoing. The parties agree that they will: (a) hold in confidence and refrain from disclosing to any other person all Proprietary Information, whether written or oral, tangible or intangible, (b) take all reasonable precautions necessary to ensure that the Proprietary Information is not shown, copied or disclosed to third parties, without the prior written consent of the Disclosing Party, (c) not, without the prior written consent of the Disclosing Party, release, disclose or permit the release or disclosure by its agents or representatives of any Proprietary Information to anyone, or otherwise use or permit its agents or representatives to use, such Proprietary Information for any purpose at any time, except to the extent permitted herein or as may be ordered by a court of competent jurisdiction, and (d) observe all written security policies implemented by the Disclosing Party from time to time with respect to the Proprietary Information. The parties agree to use the same degree of care as used for their own information of like importance, and in any event to use reasonable care, in safeguarding against disclosure of the Proprietary Information. If either party is ordered to disclose any Proprietary Information, whether in a legal or regulatory proceeding, such party shall provide the disclosing party with prompt notice of such request or order so that the Disclosing Party may seek to prevent such disclosure. In the event of any disclosure, the party so disclosing shall disclose only that portion of the Proprietary Information that it is ordered to disclose pursuant to such legal or regulatory proceeding. Notwithstanding the foregoing, nothing herein shall apply to that part of the Proprietary Information of a Disclosing Party that a Receiving Party demonstrates (a) was, is or becomes generally available to the public other than as a result of a breach of this section by the Receiving Party of its representatives; (b) was or is developed by the Receiving Party independently of and without reference to any Proprietary Information of the Disclosing Party; or (c) was, is or becomes available to the Receiving Party on a non-confidential basis from a third party not bound by a confidentiality agreement or any legal, fiduciary or other obligation restricting disclosure. TERM The initial term of this agreement shall be the period selected by you at the commencement of your account. Periodic accounts (monthly, annual, biannual) are automatically renewed and the payment frequency is established according to the payment method listed on the account (monthly for credit card, quarterly for check). You can change the frequency of subsequent billing periods at any time. Additional options/overages are billed monthly. SUSPENSION AND TERMINATION Suspension - At the sole option of Newtek Web Services for any reason set forth herein or in the event that You breach any term of this agreement including but not limited to The Payment of Fees or any violation of the Newtek Web Services Acceptable Use Policy, Newtek Web Services may suspend Your account by deactivating any access by You and/or by web users to any information contained on the Newtek Web Services servers related to Your account while maintaining the information and data related to Your account upon the Newtek Web Services servers. Suspension shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. Newtek Web Services may, at its sole discretion, provide you with notification of such suspension. At Newtek Web Services sole discretion, Newtek Web Services may provide you with an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension. Should any account require suspension, Newtek Web Services will retain the right to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or other costs of any kind as may be applicable under Arizona Law. Termination - This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Newtek Web Services servers. Such information or data may or may not be made available to you by Newtek Web Services after any such termination. Termination of Your account is within the sole discretion of Newtek Web Services and your account may be immediately terminated in accordance with the principles of this Agreement, at any time with immediate effect. Newtek Web Services may, at its sole discretion, limit or deny access to its servers, for any reason, including the blocking of certain ports and/or the denial of certain services, if, in the judgment of Newtek Web Services, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the Newtek Web Services servers. Should any account require termination Newtek Web Services will retain the right to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or other costs of any kind as may be applicable under Arizona Law. INFORMATION USAGE AND COMMUNICATIONS You hereby consent and agree that any information Newtek Web Services may collect from You and/or maintain with respect to You, including but not limited to Your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from Newtek Web Services concerning You or Your account, or other information which in Newtek Web Services sole judgment is reasonable, Newtek Web Services may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Newtek Web Services and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act. During and after the term of this agreement You agree to receive periodic emails from Newtek Web Services in regards to Newtek Web Services or partner products, services, Your account, and system conditions, changes, updates or and schedules. You agree to provide, and at all times during the term of this agreement maintain, true and accurate account information on file with Newtek Web Services specifically including Your Name, Address, Email address, telephone number, billing information and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and/or termination. You have access to general account information via the WebControlCenterTM (located at https://www.webcontrolcenter.com/customer.aspx) and must keep this information current. While Newtek Web Services provides backup services (with the exception of IIS .log files) and makes every effort to provide previous copies of Your files (for a specified dollar amount as specified on the Newtek Web Services web site), to You, it is not guaranteed that these copies will be available as there are unknown issues that may arise preventing complete or acceptable restorations. Restoration of data from the backups Newtek Web Services provides are done during normal business hours and based on the average ticket time for all support requests. Restore requests are handled via the WebControlCenterTM Newtek Web Services makes available for use by you. During off hours, every attempt is made to restore data as quickly as possible. However, off hours are used to run the backups of all server data on the Newtek Web Services network. Therefore, while Newtek Web Services is backing up server data, the ability to restore data at the same time that backups are running is limited and will generally take considerably longer than requests made during normal business hours. For Dedicated customers only: Newtek Web Services installs its WebControlCenterTM Service on any dedicated server that is released to you. This service submits internal communication with the Newtek Web Services WebControlCenterTM Server through incoming port 743 and outgoing port 52155. As all communication is internal to the Newtek Web Services network, any bandwidth utilization by the service does not count against the bandwidth allocation given for any particular dedicated server. You are subject to termination if this service is disabled or uninstalled as it may significantly reduce the performance of the server and Newtek Web Services ability to provide reliable service and monitor the server and the network for malicious activity. In addition, should You utilize any firewall solution (regardless of whether it is the solution offered by Newtek Web Services or any similar service or application), it is up to You to ensure that the ports used by the WebControlCenterTM Service are left open and perform uninterrupted communication back to the Control Center server. NOTICE Any notice under this agreement shall be given by Newtek Web Services to you via email at the address provided by you to Newtek Web Services at the commencement of this agreement or as Newtek Web Services are subsequently advised. Notice to You at this address is deemed sufficient regardless of your receipt of such email. Any notice by You to Newtek Web Services shall be made in writing and sent via United States Mail to the following Address: Newtek Web Services, Inc. 1125 W. Pinnacle Peak Road, Suite 103 Phoenix, AZ 85027 USA INFRINGEMENT POLICY Newtek Web Services, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right to terminate Your account if Newtek Web Services determines, in its sole discretion, that You are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE It is Newtek Web Services policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof, and you believe that any content hosted by Newtek Web Services infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") as set forth below. (1) Written Notification Policy for Claimed Infringement Pursuant to 17 U.S.C. Section 512(c), Newtek Web Services has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. All claims of infringement must be submitted to Newtek Web Services in a written complaint that complies with the requirements below and is delivered to our designated agent to receive notification of claimed infringement: By mail: Newtek Web Services Inc. ATTN: Copyright Agent 1125 W Pinnacle Peak Road, Suite 103 Phoenix AZ 85027 USA By e-mail: legal@newtekwebservices.com Additionally, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information: A. A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed. B. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site is covered by a single notification, a representative list of such works at that site. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials. C. Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material. D. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or electronic mail address. E. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law. F. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed. (2) Actions Taken By Newtek Web Services upon Receipt of Notification of Claimed Infringement Upon receipt of written notification containing the above information from the Complainant, and only upon receiving such notice, Newtek Web Services will: (I) Remove or disable access to the infringing material(s) immediately or within a reasonable time frame. (ii) Take reasonable steps to contact you and inform you that the material(s) in question has been removed or disabled. In response, the person receiving the complaint may send a written counter notification (by fax or regular mail, email only through prior arrangement) to Newtek Web Services designated agent. The counter notification must include the following: (I) A physical or electronic signature by the person countering the claim. (ii) Identification of the material(s) that have been removed or to which access has been disabled and the location at which the material(s) appeared before it was removed or access to it was disabled. (iii) A statement, under penalty of perjury, that states the person countering the claim has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (iv) The name, address and telephone number of the person countering the claim, and a statement that They consent to the jurisdiction of Federal District Court in which this address is located. If the address of the person countering the claim is outside of the United States, that person shall consent to the judicial district of Newtek Web Services principal place of business, and that person will accept service of process from the Complainant who provided the original notification or an agent of such person. Upon receipt of the written counter notification containing the above information from the person countering the claim, and only upon receiving such notice, Newtek Web Services will: (i) Provide the Complainant with a copy of the counter notification. (ii) Inform the Complainant that Newtek Web Services will replace the removed material or cease disabling access to it in 10 business days. (iii) Replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless Newtek Web Services designated agent receives notice from Complainant that an action has been filed, seeking a court order to restrain the complainee from engaging in infringing activity relating to the material referenced in the original notification. WARRANTEES AND LIMITATIONS Newtek Web Services makes every reasonable effort to maintain operation of the Newtek Web Services service however because as many events and circumstances are beyond the control of CrystalTech, Newtek Web Services does not in any way warrant or otherwise guarantee the availability of the Newtek Web Services system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Newtek Web Services. THE NEWTEK WEB SERVICES SERVICE IS PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. In general, Newtek Web Services has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Newtek Web Services accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Newtek Web Services provides no warrantee for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Newtek Web Services system. You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing. THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO NEWTEK WEB SERVICES IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL NEWTEK WEB SERVICES BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES. INDEMNITY You agree to fully defend and indemnify and hold harmless Newtek Web Services of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to Your use of the Newtek Web Services service or any portion thereof. Choice of counsel remains exclusively that of Newtek Web Services You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless Newtek Web Services of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of Your confidential User ID and Password information. Choice of counsel remains exclusively that of Newtek Web Services. For Dedicated Customers only: The Microsoft Windows software Newtek Web Services provides to You as part of their Dedicated Server Hosting plans is licensed via the Microsoft Service Provider Program. Newtek Web Services does not provide any additional Microsoft software for your dedicated servers. Licensing for any software that may be installed by you on a Newtek Web Services Dedicated Server is the sole responsibility of you. This Agreement supersedes any additional Agreements that you or Newtek Web Services may have with any other vendor. Once a Dedicated Server is released to you, use of the Dedicated Server represents acceptance of any and all licensing agreements Newtek Web Services has in place, and future installation of custom software, regardless of software vendor, is solely the responsibility of you. FORCE MAJEURE Newtek Web Services shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of Newtek Web Services shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. ASSIGNMENT Your rights under this agreement may be assigned only upon prior written notice and express written approval by Newtek Web Services. Newtek Web Services may assign its rights hereunder to any person or entity who shall become a principal owner or shareholder of Newtek Web Services. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. SEVERABILITY If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. CHOICE OF LAW This Agreement shall be interpreted under the laws of the State of Arizona without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the State of Arizona, County of Maricopa. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue. NO AGENCY Notwithstanding any other provision of this agreement, Newtek Web Services is not Your agent, partner or joint venturer in any respect. AMENDMENT Newtek Web Services may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Newtek Web Services web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
