1. Order, Acceptance and Service.
a.When Accepted by Radiant Solutions, the Order submitted by Customer creates a contract between Customer and Radiant Solutions, consisting of the Order, the applicable Service Description and these Terms of Service. An Order is "Accepted" by Radiant Solutions when (i) with respect to Orders submitted online, Radiant Solutions provides Services in response to the Order or bills Customer for payment and (ii) with respect to Orders reduced to writing and signed on an approved Radiant Solutions form, when an authorized representative of Radiant Solutions executes and delivers such form signed by Customer.
b.Radiant Solutions will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (The "Service Fees").
c.In connection with any Hosting Services, Customer will not use storage space in excess of the storage limits established for the Services in the Service Descriptions, plus any storage space purchased by Customer. If Customer uses storage space in excess of such amounts, Radiant Solutions may, without limiting its other rights or remedies, assess Customer with additional fees.
d.In connection with any Hosting Services, if Customer's actual bandwidth usage in any month exceeds the limit in the Service Description, Customer will pay Radiant Solutions such additional fees as may be specified in the Service Description.
2. Fees, Taxes and Payment.
Customer will pay to Radiant Solutions the Service Fees in the manner set forth in the Order. Radiant Solutions may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Radiant Solution’s net income). All such taxes will be added to Radiant Solution’s invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. If any invoice is not paid within 45 days after the date of the invoice, Radiant Solutions may charge Customer a late fee of $15 for such invoice; in addition any amounts payable to Radiant Solutions not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. Delinquent accounts may be suspended at Radiant Solution’s sole discretion. In the event of a suspension of the Services, upon a reactivation request by Customer, Customer shall pay Radiant Solutions a reactivation fee in addition to full payment of the outstanding balance due. Reactivation of services will only be performed during Radiant Solution’s normal business hours (Monday through Friday, 9:00 am - 6:00 p.m., PST, excluding holidays.) If Radiant Solutions collects any payment due at law or through an attorney at law or under advice there from or through a collection agency, or if Radiant Solutions prevails in any action to which the Customer and Radiant Solutions are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Radiant Solution’s reasonable attorneys' fees. If any Customer payment is returned for insufficient funds Radiant Solutions will impose a processing charge of $25. If two or more Customer payments are returned for insufficient funds in any 6 month period, Radiant Solutions in its sole discretion may require alternative payment methods for all future Customer payments including, without limitation, credit card, money order, or cashier's check.
3.Term and Termination.
Hosting Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one month periods unless the Order is earlier terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
a.Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.
b.Radiant Solutions may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if Radiant Solutions determines in good faith that Customer's use of the Customer Web site or the Customer Content violates the Acceptable Use Policy.
c.Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Radiant Solutions may be entitled.
d.With respect to Non-Prepaid Plans, within 30 days after the termination of this Agreement, Customer will pay the Termination Charge to Radiant Solutions unless (i) Radiant Solutions terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). With respect to Prepaid Plans, Customer will pay the Termination Charge as provided in the Service Description. The parties agree that the Termination Charge constitutes consideration for Radiant Solution’s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 3(b), or if Radiant Solutions terminates the Order under Sections 3(c)(i) or 12(c), Radiant Solutions shall return to Customer, and Customer shall accept, as Customer's sole and exclusive remedy for Radiant Solution’s breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination.
4. Customer’s Representations and Warranties.
Customer hereby represents and warrants to Radiant Solutions, and agrees that during the Term Customer will ensure that: (a) Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Radiant Solutions to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer's use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for business purposes and not for any family, household or personal use.
5.License to Radiant Solutions.
Customer hereby grants to Radiant Solutions a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content and the Customer Web site. Except for the rights expressly granted above, Radiant Solutions is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
6. Radiant Solution’s Acceptable Use Policy.
Customer will abide by, and utilize the Services and the Customer Web site only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") that Radiant Solutions posts on its Web site, as such Acceptable Use Policy may be changed by Radiant Solutions from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access Radiant Solution’s Web site to determine if Radiant Solutions has made any changes thereto.
7. Customer’s Responsibilities.
Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
a.Customer will cooperate fully with Radiant Solutions in connection with Radiant Solution’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Radiant Solution’s performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Radiant Solutions of any change in Customer's mailing address, telephone, e-mail or other contact information.
b.Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
c.Customer will provide Radiant Solutions with a registered domain name for the Customer Web site, or, upon Customer's request and subject to Radiant Solution’s Domain Name Registration Terms and, the provisions of which are incorporated herein by this reference, Radiant Solutions will register an Internet domain name on behalf of Customer.
d.Because the Hosting Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Radiant Solutions to provide the Hosting Services, as the same may be changed by Radiant Solutions from time to time. Specifications for the hardware and software used by Radiant Solutions to provide the Hosting Services will be available on Radiant Solution’s Web site. Customer shall periodically access Radiant Solution’s Web site to determine if Radiant Solutions has made any changes thereto. Radiant Solutions shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Radiant Solutions to provide the Hosting Services.
e.Unless the applicable Service Description provides otherwise, Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.
8. Radiant Solutions Intellectual Property.
Radiant Solutions hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Radiant Solutions Technology solely for the purpose of accessing and using the Services. Customer may not use the Radiant Solutions Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Radiant Solutions to Customer any Radiant Solutions Technology, and all rights, titles and interests in and to the Radiant Solutions Technology shall remain solely with Radiant Solutions. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Radiant Solutions Technology.
a.Radiant Solution’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Radiant Solutions. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Radiant Solutions. Radiant Solutions shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Radiant Solutions to Customer. Radiant Solutions may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
b.Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Radiant Solutions relating to the Services will be treated as being non-confidential and non-proprietary. Radiant Solutions may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
9 .Limited Warranty.
Radiant Solutions represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Radiant Solutions generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Radiant Solutions within 30 days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Radiant Solution’s sole obligation, for breach of the foregoing warranties shall be for Radiant Solutions, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. Radiant Solutions may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
a.The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Radiant Solution's reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer's equipment or any third-party equipment not within the sole control of Radiant Solutions.
b.EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, RADIANT SOLUTIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND RADIANT SOLUTIONS HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. RADIANT SOLUTIONS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10. Limitation of Liability.
IN NO EVENT WILL RADIANT SOLUTION’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO RADIANT SOLUTIONS BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
a.RADIANT SOLUTIONS CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. RADIANT SOLUTIONS WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED on ITS SYSTEM.
b.EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
c.The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party's breach of Section 13 or to Customer's indemnification obligations under Section 11.
11. Indemnification of Radiant Solutions.
Customer shall defend, indemnify and hold harmless Radiant Solutions, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Radiant Solutions Indemnities"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Radiant Solutions Indemnities may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer Web site or any End User’s use of the Customer Content or the Customer Web site, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer’s domain names, the Customer Web site, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Radiant Solutions, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware or software used by Radiant Solutions to provide the Services, including any damage to Radiant Solution’s servers or other hardware caused thereby.
12. Indemnification of Customer.
Subject to Section 10, Radiant Solutions shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that Radiant Solutions has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist Radiant Solutions in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Radiant Solutions, but Radiant Solutions will not be liable for any costs or expenses incurred without its prior written authorization.
a.Promptly after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to Radiant Solutions, provided that failure to give or delay in giving such notice to Radiant Solutions shall not relieve Radiant Solutions of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Radiant Solutions shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Customer may participate in the defense of any such claim or suit at Customer’s own expense.
b.If an injunction, decree or judgment is, or Radiant Solutions believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, Radiant Solutions may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.
c.Notwithstanding Section 12(a), Radiant Solutions assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by Radiant Solutions in writing, (iii) the Customer Content, the Customer Web site or any content, data or information provided or supplied by an End User, or (iv) Customer’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF RADIANT SOLUTIONS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
13. Confidentiality; Non-Solicitation.
Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
a.Notwithstanding Section 13(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
b.Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
c.During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Radiant Solutions performing services under this Agreement, while such employee is employed by Radiant Solutions and for a period of six months after such employee has left the employment of Radiant Solutions.
14. Optional Services. In connection with any Optional Services.
Customer must provide Radiant Solutions with any information, login identifications, and passwords or other information or access to facilities that Radiant Solutions may reasonably require to provide the Optional Services Radiant Solutions will have no responsibility for any delays or increased costs or expenses associated with Customer’s failure to provide any of such information. If Customer does not provide any such information or access requested by Radiant Solutions within fifteen (15) days of Radiant Solution’s request therefore, Radiant Solutions may terminate the Order and retain any Service Fees paid.
a.If Customer requested that Radiant Solutions perform the Optional Services by a particular deadline or that Radiant Solutions achieve some particular result or outcome, Radiant Solutions will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Radiant Solution’s ability to perform the Services is subject to Customer’s provision of information and access as provided above and (ii) Radiant Solutions has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result
b.If Customer wishes to convey documents or files to Radiant Solutions, Customer should deliver to Radiant Solutions a copy or duplicate of such documents or files and not the original copy. Radiant Solutions will not return to Customer any documents or files conveyed to Radiant Solutions.
c.Radiant Solutions will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Radiant Solution’s provision of Optional Services requested by Customer.
15. Miscellaneous.
Independent Contractor. Radiant Solutions and Customer are independent contractors and nothing contained in this Agreement places Radiant Solutions and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
