INTERSTACK Corporation Terms of Service



(Last Modified 8/1/11)




These Terms of Service form part of an agreement between Interstack Corporation ("we"), a Washington corporation, and the customer ("you"). This Agreement governs provision of Interstack’s services and is effective as of the moment the two parties sign a contract and we make the Services available for your use.


GENERAL TERMS

In addition to these Terms of Service, your use of Interstack services is governed by the INTERSTACK CORPORATION Acceptable Use Policy and the terms of your Order. When we use the term "Agreement" in any of the Order, Terms of Service, or Acceptable Use Policy, we are referring collectively to all of them. You agree that the Service is for business use and not for consumers, and you hereby affirm that you will use the Service for business purposes and not for personal, family, or household purposes; and that you are not an individual less than 18 years old.

This Agreement is the complete and exclusive agreement between you and Interstack and supersedes and replaces any prior agreement, understanding, or communication, written or oral.


SPECIFIC TERMS


1. OBLIGATIONS.

Contingent on Interstack's acceptance of your Order, and subject to these Terms of Service, Interstack agrees to provide the Services described on the Order. Interstack agrees to follow security procedures at least as stringent, in Interstack's reasonable judgment, as those described in our security practices.

You agree to do each of the following: (i) comply with applicable law and the INTERSTACK CORPORATION Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Interstack's reasonable investigation of outages, security problems, and any suspected breach of the Agreement; and (v) immediately notify Interstack of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Interstack's reasonable determination shall control.


2. ACCESS TO THE SERVICES.

You may access the Services via the Interstack-provided User Interface. Interstack may modify its User Interface at any time, or may transition to a new one. Your use of any Interstack User Interface is governed by the license terms included with the code.


3. TERM.

The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one year. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one year each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.


4. FEES.

Interstack will charge you the fees stated in your Order. Unless you have made other arrangements, Interstack will charge as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees on or around the date incurred. Interstack may suspend all services if our charges are not paid in a timely manner. Interstack may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Interstack brings a legal action to collect, or engages a collection agency, you must also pay Interstack's reasonable costs of collection, including attorney fees and court costs. You must provide Interstack with accurate factual information to help Interstack determine if any tax is due with respect to the provision of the Services, and if Interstack is required by law to collect taxes on the provision of the Services, you must pay Interstack the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Interstack to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you will be applied to unpaid fees for services or refunded to you, at our option.


5. SUSPENSION.

We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Interstack or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.


6. TERMINATION.

You may terminate the Agreement for convenience at any time on thirty days advance written notice.

You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.

We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Interstack in an orderly fashion, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.


7. TITLE.

Title and intellectual property rights to the Service and all components thereof are owned by Interstack and its licensors and suppliers. All hardware and Internet protocol addresses provided by Interstack are licensed to Customer temporarily and remain Interstack's sole and exclusive property. This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, "Software"), or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, "Trademarks") displayed on Interstack's website and through the Service, whether or not registered, belong to Interstack and its licensors and suppliers. Neither this Agreement nor any Interstack website grants a license to any Trademark, by implication, by estoppel, or otherwise. Nothing in this Agreement transfers to Interstack any copyright in, trademark on, or other ownership interest in any data or content of Customer. However, Interstack may include Customer's name in any list of customers used for marketing or other purposes.


8. ACCESS TO DATA.

You will not have access to your data stored on the INTERSTACK CORPORATION system during a suspension, or following termination.

You will not have access to your data stored on the INTERSTACK CORPORATION system in the event of hardware failure, or abuse by hackers or other third parties, or improper administration by you, or other interruption of network access.

We may interrupt Service to perform maintenance on our equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. We will exercise reasonable efforts to inform you before interrupting Service and to repair the Service promptly.

You are responsible for maintaining security for access to data except to the extent we specifically accept such responsibility by listing such service features in our Agreement. You will promptly report any Service failure to us.

We are not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from our failure to meet our security obligations stated in the Agreement.

You are responsible for maintaining the confidentiality of your usernames and passwords, and you will not transfer or sell to any third party such usernames or passwords, or your access to the Service.


9. DISCLAIMERS.

We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Interstack has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen.


10. CONFIDENTIAL INFORMATION.

Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:



11. LIMITATION ON DAMAGES.

Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct.

Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.

Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Interstack's negligence, the maximum aggregate monetary liability of Interstack and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim.


12. INDEMNIFICATION.

If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Interstack Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Interstack Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.


13. NOTICES.

Your routine communications regarding the Services should be sent to your INTERSTACK CORPORATION account team using your INTERSTACK CORPORATION control panel. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class United States mail to:

Email: legal@Interstack.com


14. ASSIGNMENT/SUBCONTRACTORS

You may not assign the Agreement without Interstack's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Interstack may use third party service providers to perform all or any part of the Services, but Interstack remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Interstack performed the Services itself.


15. FORCE MAJEURE

Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.


16. GOVERNING LAW, LAWSUITS

The Agreement is governed by the laws of the State of Washington, exclusive of any Washington choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in King County, Washington, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Interstack or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.