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This Terms of Use Agreement (this “Agreement”) governs the use of PeakImage’s website and, in addition, states the terms and conditions by which PeakImage will deliver and you (sometimes referred to as “customer”) will receive the services ordered from PeakImage (sometimes referred to herein as the “services”). By using PeakImage’s website and/or the services, you agree to all of the provisions contained or referred to in this Agreement. PeakImage reserves the right to change, modify or amend this Agreement at any time in its sole discretion, and your use or continued use of the website and/or services after any such changes are posted at www.PeakImage.com constitutes your acceptance of such changes. Please consult this Agreement, and the policies referenced herein, regularly.
1. Delivery of Services; Term.
(a) Delivery of Services. By submitting an order for services either through the website or off-line, customer agrees to take and pay for the services ordered. In addition, it may be necessary for PeakImage to perform certain supplemental services from time to time in connection with providing the services ordered, and customer hereby authorizes PeakImage to perform such services on its behalf as needed.
(b) Term. The term of this Agreement (the “Term”) shall commence on the date an order submitted by customer is accepted by PeakImage (as evidenced in writing or by PeakImage beginning to provide services to customer), and shall remain in effect until such time as it is terminated in accordance with Section 10. The termination of any particular service will not affect customer's obligations to pay for other service(s).
2. Other Policies. The customer hereby acknowledges and agrees that customer has read and understands PeakImage’s Privacy Statement and Acceptable Use Policy, the terms of which are hereby incorporated by reference, and agrees to abide by such policies for the duration of the Term.
3. Fees and Payment Terms. Customer will pay all fees due according to the prices for each service ordered, as such prices are either listed on the website or separately provided to customer in writing. In addition, customer will pay all fees due in respect of supplemental services required to be provided by PeakImage from time to time at PeakImage’s then-prevailing hourly rate. Set up fees are non-refundable. For all new domain names, there is an initial InterNIC registration fee of $70 for the first 2 years, which fee (a) shall automatically be paid by PeakImage (including all renewal fees) on your behalf during the Term, and (b) shall be included on the first invoice to customer after PeakImage’s payment of any such fee. Unless otherwise agreed between the parties, customer will be billed monthly on the first day of each month during the Term for services to be provided for the following month. All other charges for supplemental services and expenses incurred during a particular month (e.g., additional bandwidth usage fees) will either be billed immediately or at the end of the month in which such services were provided. Payment for all fees shall be in U.S. Dollars and is due upon receipt of each PeakImage invoice. Notwithstanding anything to the contrary in this Agreement, PeakImage expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, without limitation, the date on which such billing will occur and the types of charges that will be included in such bills. Any payment not received within 10 days of the invoice date will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Customer also shall reimburse PeakImage for all expenses incurred by PeakImage in exercising any of its rights under this Agreement or applicable law with respect to a default in payment or other breach of this Agreement by customer, including, without limitation, reasonable attorneys' fees and the fees of any collection agency retained by PeakImage. Customer will be responsible for and will pay in full, except for taxes on PeakImage’s net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of services.
4. Intellectual Property Ownership. This Agreement shall not be deemed to transfer from PeakImage to Customer any of PeakImage’s intellectual property (including, without limitation, patents, trademarks, service marks, copyrights and licenses), technology, software programs or any related assets owned by PeakImage. The PeakImage logo and other PeakImage marks appearing on the website are either registered or unregistered marks of PeakImage, and PeakImage retains all rights with respect to such marks. Similarly, this Agreement shall not be deemed to transfer from customer to PeakImage any of customer’s intellectual property (including, without limitation, patents, trademarks, service marks, copyrights and licenses), technology, software programs or any related assets owned by customer.
5. Disclaimer of Warranties. PeakImage DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. THE SERVICES, INCLUDING SUPPLEMENTAL SERVICES, ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. PeakImage DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS AND/OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PeakImage DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, BUG-FREE OR COMPLETELY SECURE. PeakImage DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM PeakImage'S NETWORK AND OTHER PORTIONS OF THE INTERNET, AS SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF), AND PeakImage CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. PeakImage DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. FINALLY, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM PeakImage OR ANY THIRD PARTY VENDOR. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PeakImage NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER AGREEMENT FOR THIRD PARTY PRODUCTS AND CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND PeakImage WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS.
6. Customer Obligations. Customer agrees that it will use PeakImage’s service(s) only for lawful purposes and in accordance with this Agreement (including the policies incorporated by reference pursuant to Section 2). Customer shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any third party product, (ii) reverse engineer, decompile, or disassemble any third party product, or (iii) transfer, assign or rent its PeakImage accounts to any party (provided that customer may allow ftp access to its server and host web sites for its customers without violating this Section 6).
7. Representations and Warranties. Each party hereby represents and warrants to the other party that it has the right and authority to enter into this Agreement and to perform its obligations hereunder, that the granting of the rights and undertaking of the obligations hereunder will not infringe upon or conflict with any rights of a third party, and that its performance hereunder will not violate any applicable U.S. laws and government rules and regulations. Neither PeakImage nor any third party provider makes any representations or warranties whatsoever regarding any third party products (including, without limitation, third party software platforms and/or third party services).
8. Limitations of Liability.
(a) Delays and Interruptions. PeakImage SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND PeakImage SHALL HAVE NO LIABILITY THEREFOR EXCEPT TO THE EXTENT OF PeakImage'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. PeakImage WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO PeakImage'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PeakImage'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE.
(b) Consequential Damages. EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
(c) Limitation. Notwithstanding anything else to the contrary contained in this Agreement, PeakImage's maximum aggregate liability to customer for any claim related to, or in connection with, this Agreement or any services provided to customer, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by customer to PeakImage for the prior 6 months immediately preceding the date on which the claim arose.
9. Indemnification. Each party agrees to indemnify and hold harmless the other party and the other party’s officers, directors, shareholders, employees, attorneys, accountants, agents and subsidiaries from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to any breach of any warranty, representation, covenant or agreement made by the indemnifying party in this Agreement. The foregoing indemnity is conditioned upon (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed, (b) complete control of the defense and settlement thereof by the indemnifying party, and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request.
10. Term and Termination. This Agreement and the services purchased hereunder may be terminated by either party at any time upon at least 30 days' prior, written notice of termination to the other party, it being understood that customer’s transferring of a domain name does not by itself constitute termination of the services hereunder. In addition, either party may terminate this Agreement and the services immediately on written notice to the other party if the other party has (a) declared bankruptcy, or (b) materially breached any term or condition of this Agreement and failed to cure such breach within (i) 3 days of such breach if the breach involves failure to make a payment to PeakImage, or (ii) 30 days of receipt of notice of such breach for all other breaches of this Agreement. Upon any termination of this Agreement and the services, any and all payment obligations of customer under this Agreement for service(s) provided through the date of termination will immediately become due, and customer shall be required to prepay for any portion of the services that have not been paid for and are to be rendered during such 30-day period. Upon expiration, cancellation or termination of this Agreement, customer shall relinquish any Internet protocol numbers, addresses or address blocks assigned to customer by PeakImage or its network services supplier (but not the URL or top level domain connected therewith). PeakImage reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
11. Miscellaneous Provisions. PeakImage shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of services to customer resulting, directly or indirectly, from any unforeseen or force majeure event. PeakImage and customer agree that, except as otherwise expressly provided in this Agreement or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement. This Agreement is made under and will be governed by and in accordance with the laws of the State of Illinois (except for its rules regarding conflicts of laws). Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by arbitration in Chicago, Illinois under the rules of arbitration of the American Arbitration Association. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior, written consent of PeakImage, and any attempted assignment or delegation without such consent will be void. PeakImage may assign this Agreement in whole or part, and may delegate the performance of certain services to third parties. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt e-mail or upon receipt of delivery of overnight mail (provided, that PeakImage may provide day-to-day notices and updates to customer via e-mail). PeakImage and customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between PeakImage and customer. Except for any written agreements between the parties which expressly supercede the terms of this Agreement, this Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
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