Legal Information Regarding iNamics
The iNamics trademark is owned & operated by iNamics, a privately held Delaware
corporation with headquarters in Chagrin Falls, Ohio, just outside of Cleveland,
where the company maintains a data center. If you have a question regarding any
of our domains, applications, tools, products or services, please write to: P.O.
Box 2, Chagrin Falls, OH 44022. If you would like to have your url listed at any
of our domains, call us at (216) 916-0196 (voice), (800) 368-7416 (toll-free) or
send us a message. If you wish to reach iNamics Corp.
by fax, please use this number: (216) 923-1322.
iNamics Legal Notice Pertaining to its Web Site
Hereafter, we refer to iNamics as "the Company".
Information and Accuracy: Information and services provided at
the Internet domain iNamics.com is provided "AS IS" without warranty of
any kind, either express or implied, including but not limited to, implied warranties
of merchantability, fitness for a particular purpose, or non-infringement.
No Liability: In no event will the Company be liable to any party
for any direct, indirect, punitive, special, confidential or other consequential
damages arising directly or indirectly from any use of this internet resource, even
if the Company is expressly advised of the possibility of such damages.
Copyright Notice: This web site is subject to the protection of
the copyright laws of the United States and other countries. You may not reproduce
any part of this web site without the prior written permission of the Company and
its affiliates.
Trademarks: iNamics TM, the iNamics logo, and other names, logos,
icons and marks identifying products and services referenced herein are trademarks
of the Company and its affiliates and may not be used without the prior written
permission of the Company and/or its affiliates. Third-party use of any such trademark
must comply with the Company's trademark policy. Other product or company names
referred to herein are trademarks of their respective owners.
Links to Other Sites: Information on this web site contains links
and references to other sites. Other sites may contain links or references to this
site. The Company does not endorse, and is not responsible for, any product or service
offered by any entity other than itself.
Comments: Any comments or materials sent to the Company regarding
this web site may be used by the Company without liability, and without compensation
or attribution to the sender. The Company may reproduce, use, disclose, exhibit,
display, transform, create derivative works and distribute such content or materials
to others without limitation.
Regulation E Disclosure: The Company operates all of its web services
in compliance with the Electronic Fund Transfer Act and Regulation E as issued by
the Board of Governors of the Federal Reserve System.
Privacy Policy: Inamics does not send unsolicited email. Nor do
we sell your personal information. Please read our Privacy Policy for a complete explanation of our
privacy policy.
Acceptable Use Policy: Please read our Acceptable Use Policy for a complete explanation
of our acceptable use of our services.
The information in the following sections below provides legal policies and procedures
pertaining to the named subject matter. Please read the information you need to
carefully for any appropriate services you are receiving, or plan to receive from
iNamics.
INAMICS HOSTING SERVICES:
INAMICS ONLINE WEB SITE HOSTING, EMAIL AND/OR APPLICATION HOSTING (INCLUDING MICROSOFT
EXCHANGE), SERVER AND DATA HOSTING (HEREUNDER REFERRED TO AS "SERVICE"
OR "SERVICES") INCLUDE A MASTER SERVICE AGREEMENT. PLEASE READ
VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE USING INAMICS' SERVICES.
IF YOU HAVE BEEN BROUGHT TO THIS PAGE BECAUSE YOU ARE IN THE PROCESS OF SIGNING
UP FOR A SERVICE AND DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE CLOSE YOUR
BROWSER AND DO NOT PROCEED WITH ORDERING OR USING THE SERVICE. BY CLICKING "I
AGREE" AND/OR USING INAMICS' SERVICES, YOU AGREE TO BE BOUND BY ALL OF
THE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT, APPENDIX
A: MICROSOFT SOFTWARE USE-TERMS AND CONDITIONS AND INAMICS' ACCEPTABLE USE
POLICY, INAMICS' SERVICE LEVEL AGREEMENT (THE "SERVICE
LEVEL AGREEMENT"), INAMICS' PRIVACY POLICY AND INAMICS' NO-SPAM
POLICY, (COLLECTIVELY, THIS "AGREEMENT").
This Master Service Agreement is by and between iNamics, Corp. ("iNamics"),
with offices at 87 East Washington Street, Chagrin Falls, OH 44022, and the individual,
corporation, partnership, association, joint-stock company, trust, un-incorporated
organization, or government or political subdivision which is utilizing iNamics'
web site hosting, email and/or application hosting (including Microsoft Exchange)
and data hosting and/or other services provided hereunder ("You"). In
consideration of the mutual promises, covenants and agreements hereinafter set forth,
iNamics and You agree as follows: Use hosting and/or other services provided hereunder
(the "Services") only for lawful purposes. In the event that Your use
of the Services violates any law, rule or regulation, iNamics shall have the right
to immediately terminate your services provided and any agreement between You and
the Company shall be terminated, subject to written notice and thirty (30) days
opportunity to cure.
1. Provision of Services:
iNamics agrees to provide the Services to You in accordance with the Company's
Service Level Agreement. You hereby agree to comply with the terms and conditions
of this Master Services Agreement, the Appendix A: Microsoft Software Use-Terms
and Conditions (attached hereto), iNamics' Acceptable Use Policy, Privacy Policy
and No-Spam Policy, each of which are Corporated by reference herein. YOU SHALL
AT ALL TIMES PROVIDE AND KEEP iNamics CURRENT AND UP-TO-DATE YOUR CONTACT, CREDIT
CARD (IF APPLICABLE) AND BILLING INFORMATION.
2. Term:
The Agreement term is either the Initial Term or Renewal Term (each, a “Term”) as
defined herein.
2a. Monthly Plan Agreement Term:
For Monthly Plans, the Initial Term is defined as the period from the date of Your
initial payment or execution of this Agreement, whichever occurs earlier, through
the remainder of the calendar month in which this Agreement was executed. The Renewal
Term for Monthly Plans is defined as one calendar month beginning at the end of
the Initial Term and each subsequent calendar month thereafter.
2b. Prepaid Hosting Plan Agreement Term:
For Prepaid Hosting Plans, the Initial Term is defined as the period from the date
of Your initial payment or execution of this Agreement, whichever occurs earlier,
through the next twelve (12) calendar months. The Renewal Term for Prepaid Hosting
Plans is defined as the twelve (12) month period beginning at the end of the Initial
Term and each subsequent twelve (12) month period thereafter.
2c. Automatic Renewal:
This Agreement shall renew automatically at the end of the prior Term unless terminated
in accordance with this Agreement either by You or by iNamics. When a new Term begins,
the then current Master Service Agreement and Service Level Agreement shall replace
in their entirety the previous Master Service Agreement and Service Level Agreement.
The then current Master Service Agreement and Service Level Agreement shall be considered
this "Agreement". Please review the then current Master Service Agreement
and Service Level Agreement from time to time so that You will be apprised of any
changes.
3. Termination by You Without Cause
3a. Prepaid Hosting Plan:
For prepaid hosting plans, You may terminate Your account without cause prior to
the end of the then current Term. iNamics requires that You provide the Company
with a 30 day written notice to do so.
3b. Monthly Plan:
For monthly plans, You may terminate this Agreement according to the structure of
the plan purchased, without cause, by following the termination procedure outline
in the service level agreement, prior to the beginning of any Renewal Term. If You
terminate without cause a monthly plan prior to the end of the then current Term,
iNamics shall not be required to refund to You fees already paid.
3c. Refunds/Fees for Termination by You Without Cause: Fees for non-recurring
services and set up fees shall not be refunded. Any fees previously waived or discounts
applied may be reinstated if You terminate the account for no cause during the term
or if You breach this Agreement.
4. Termination by iNamics Without Cause:
4a. Without Cause: iNamics may terminate this Agreement without cause by
providing written or electronic mail notification of termination to Your provided
or Your Administrative email contact address not less than sixty (60) calendar days
prior to the effective termination date.
4b. Monthly Plan: For monthly plans, if the effective termination date occurs
prior to the end of the Agreement Term, iNamics shall refund or not charge You the
monthly fees for the month in which Services terminate.
4c. Prepaid Hosting Plan. If the Company terminates a Prepaid Hosting Plan
prior to the end of the then current Term without cause, a refund equal to the prepaid
hosting fees attributable to the remaining month(s) PLUS the fee for the month in
which the contract is terminated LESS any unpaid fees shall be issued within thirty
(30) calendar days of account termination to the credit card on record at time of
termination. This refund shall be Your sole remedy for iNamics' early termination
of the Agreement without cause.
5. Termination for Cause:
5a. By You: To terminate Your account for an iNamics' violation of the
terms of this Agreement or the Service Level Agreement, You shall provide to iNamics'
Legal Department in writing, via email (customerservice@iNamics.net) or via certified
mail, the details of iNamics' violation and allow iNamics thirty (30) days to
cure any such violation prior to termination of Your account.
5b. INAMICS MAY TERMINATE SERVICES TO YOU, SUBJECT TO WRITTEN NOTICE AND THIRTY
(30) DAY OPPORTUNITY TO CURE, (TERMINATION FOR CAUSE) FOR ANY OR ALL OF THE FOLLOWING
REASONS: 1) ANY MATERIAL BREACH OF THIS AGREEMENT, WHICH INCLUDES BUT IS NOT LIMITED
TO FAILURE TO MAKE PAYMENT WHEN DUE, VIOLATION OF THE INAMICS' ACCEPTABLE USE
OR NO SPAM POLICIES; OR ANY NON-MATERIAL BREACH OF THIS AGREEMENT WHICH REMAINS
UNCURED BEYOND A REASONABLE TIME AFTER BREACH NOTIFICATION; AND FAILURE TO PROVIDE
AND KEEP CURRENT ALL ADMINISTRATIVE CONTACT AND BILLING INFORMATION. 2) IN THE EVENT
OF TERMINATION FOR CAUSE, INAMICS SHALL NOT REFUND ANY PAID FEES. TERMINATION FOR
CAUSE WILL NOT CANCEL OR WAIVE ANY FEES OWED TO INAMICS PRIOR TO ACCOUNT TERMINATION.
6. Liquidated Damages: You hereby acknowledge that iNamics' damages in
the event of Your termination without cause or iNamics' termination for Your
breach will be difficult to ascertain. Therefore, the parties hereby agree that
in the event that You terminate this Agreement without cause or iNamics terminates
this Agreement for cause prior to the end of the then current Term:
6a. You shall pay liquidated damages equal to the lesser of (a) two months of the
then current monthly fees, or (b) the then current monthly fees for the remainder
of the Term. In the event of iNamics' termination for cause, the liquidated
damages shall be in addition to whatever rights and remedies are available to iNamics
at law or in equity. If You terminate a Prepaid Hosting Plan prior to the end of
the then current Term without cause, a refund equal to the prepaid hosting fees
attributable to the remaining the remaining months, LESS the liquidated damages,
any unpaid fees, any previously waived fees and any discounts that were previously
taken, shall be issued. Previously waived fees and discounts shall include but not
be limited to, free months of service at signup and any promotional discounts. This
refund will be issued within thirty (30) calendar days of account termination to
the credit card on record at the time of termination. In the event that a refund
is calculated to be less than $1.00 no refund shall be given.
6b. Fees for non-recurring services and set up fees paid in advance by You shall
not be refunded. In the event that You terminate this Agreement prior to the end
of the Initial Term, You shall reimburse iNamics for any fees previously waived
and for discounts granted by iNamics.
7. Following Termination:
TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL OR WAIVE ANY FEES OWED TO INAMICS PRIOR
TO OR UPON TERMINATION. YOUR DATA AND ACCOUNT SETTINGS SHALL BE IRREVOCABLY DELETED
IMMEDIATELY UPON TERMINATION, INCLUDING BUT NOT LIMITED TO, WEB SITE CONTENT, DATABASES,
AND EMAIL MESSAGES. IT SHALL BE SOLELY YOUR RESPONSIBILITY TO SECURE ALL NECESSARY
DATA FROM YOUR ACCOUNT PRIOR TO TERMINATION.
8. Fees, Billing, Taxes, Charges:
8.1 Fees:
The fees set forth in the order form created at the outset of Your account shall
be effective for the Initial Term and each Renewal Term of this Agreement, provided,
that iNamics shall have the right to increase these fees at any time upon thirty
(30) days’ written notice to You. In the event that You do not agree with such fee
increase, You shall have the right to terminate this Agreement upon thirty (30)
days’ written notice, provided, that such notice of termination must be received
within thirty (30) days of date of notice of the fee increase. In the event that
You have paid for services in advance, such increase will be of no effect until
the following renewal term from which You have not paid in advance.
8.2 Billing and Payment Arrangements:
iNamics will bill You on a monthly basis for all recurring and onetime fees, including
but not limited to late payment fees, invoice processing fees and returned check
fees. All plan or feature changes must result in a total fee that is equal to or
greater than the prepaid fees remaining at the time of the change. No refunds or
adjustment shall be issued for any plan downgrades or elimination of plan features.
8.3 Payment by Credit Card:
8.3a. For payment by credit card, iNamics shall not provide an invoice to You. You
may view and print an invoice for Your account using the Administrative Control
Panel. On or about the first day of each month, iNamics will apply the current monthly
charges to Your credit card, the number of which You entered on the Billing Information
page.
8.3b. It is Your responsibility to keep Your credit card information up-to-date.
In the event charges to Your credit card fail, iNamics shall email a warning to
Your account billing contacts. If, after seven (7) days, iNamics is unable to bill
Your credit card, iNamics will suspend Your access to the Services. During this
suspension, incoming email as well as existing data will not be affected. After
fourteen (14) days of non-payment from the date Your credit card was initially charged,
iNamics shall have the right to immediately terminate this Agreement.
8.4 Payment by Check:
8.4a. In the event that You apply for and are accepted into iNamics' invoice
program, iNamics will issue You an invoice within the first five (5) days of each
calendar month. Each monthly invoice shall include an invoice processing fee of
$25.00 (twenty-five dollars). Payment by check must be received within fifteen (15th)
calendar days of each month. Acceptance into iNamics' invoice program shall
be at iNamics' sole discretion.
8.4b. Should Your check not be honored by the financial institution, a returned
check fee in the amount of the lesser of $50.00 (fifty dollars) or the maximum amount
allowed by law, will be assessed.
8.4c. In the event You fail to make timely payment for any reason by the fifteen
(15th) calendar day of the month for which the payment is due, Your access to the
server will be immediately suspended after notice and ten (10) days opportunity
to cure. During such suspension, incoming email as well as existing data will not
be affected. After fourteen (14) days of non-payment from the date payment is due,
iNamics shall have the right to immediately terminate this Agreement.
8.4d. In the Event that iNamics Does Not Receive Payment by the Due Date When the
Payment is Due, iNamics shall have the right to assess a late payment fee, equal
to the greater of the amount of (1) interest calculated at the lesser of 18% or
the maximum rate permitted by law, or (2) $25.00 (twenty-five dollars).
8.4e. In the Event of a Late or Dishonored Check, You may be required to pay via
Cashier’s Check or money order. iNamics shall have the right to assess a late payment
fee, equal to the greater of the amount of (1) interest calculated at the lesser
of 18% or the maximum rate permitted by law, or (2) $25.00 (twenty-five dollars).
8.5 Excess Use:
You shall monitor and maintain Your accounts within all plan-specified limits and
in a manner that does not disrupt the activities of other iNamics customers. In
the event Your usage exceeds the limits for Your account or may disrupt the activities
of other iNamics customers, You agree iNamics may, in its sole discretion, (i) charge
You for such excess usage via Your credit card, or by invoice if You have been accepted
into a check paying program, (ii) upgrade You to a plan or increase the limits on
Your account to address this excess usage, and/or (iii) suspend or terminate Your
account for cause. Usage and associated charges for excess usage shall be determined
based solely upon iNamics' collected usage information. Unused monthly allotments
shall not accrue or carry over from one month to any other month. Upon any upgrade
or increase on the limits of Your Account, You shall be responsible for the new
costs and fees.
8.6 Taxes:
You shall be liable for taxes, governmental fees and assessments to be paid related
to fees and charges arising in connection with the Services delivered to You.
9. Modification of Terms:
iNamics may update, amend, modify or supplement the terms and conditions of this
Agreement from time to time without notice to You. You can review the most current
version of this Agreement by returning to this web page.
10. Beta Products and Services:
10.1 Provided "As Is":
THIS SECTION APPLIES ONLY TO CUSTOMERS WITH ACCOUNTS CREATED ON EXPERIMENTAL "BETA"
PLANS AND PLATFORMS. "BETA" SERVICES ARE PROVIDED TO YOU ON AN "AS
IS" BASIS. iNamics' SERVICE LEVEL AGREEMENT SHALL NOT APPLY TO "BETA"
PLANS OR PLATFORMS. NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT, INAMICS
DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE "BETA" PLANS
OR PLATFORMS NOR DOES IT MAKE ANY REPRESENTATIONS AND WARRANTIES REGARDING THE INTEGRITY
OF DATA STORED ON "BETA" SERVERS. YOU ARE STRONGLY DISCOURAGED FROM USING
ACCOUNTS ON "BETA" PLANS OR PLATFORMS FOR HOSTING ANY PRODUCTION APPLICATIONS
OR FOR STORING SENSITIVE DATA.
10.2 Upgrades:
iNamics shall upgrade software on "beta" programs when and as iNamics
deems necessary in its sole discretion. iNamics does not represent or warrant that
new versions of the software installed on "beta" programs will be compatible
with the currently installed version or that loss of functionality or interruption
of service will not occur as a result of such upgrades.
10.3 Termination:
iNamics reserves a right to terminate any "beta" program at any time by
giving You fifteen (15) days written or electronic mail notice. iNamics will convert
the "beta" servers at the end of the fifteen (15) day notice period to
an iNamics' Services Plan selected at iNamics' sole discretion. To discontinue
the account and avoid reoccurring increased charges under selected iNamics Services
Plan, You must terminate the account in accordance with the termination provisions
in Section 3 of this Agreement.
11. Materials, Data, Software or Products:
11.1 Server Ready:
Any material, data, software or products You provide to iNamics in connection with
iNamics' services shall be Server Ready, meaning that they shall be in a condition
and form, as determined solely by iNamics, which requires no additional manipulation
or verification on the part of iNamics. Attempting to place or requesting placement
of Non-Server-Ready material, data, software or products on iNamics' servers
shall be a breach of this Agreement.
11.2 Rejection:
iNamics may, in its sole discretion, reject material, data, software or products
that You have placed, attempted to place, or have requested be placed on iNamics'
servers. iNamics shall notify You of its rejection and provide You with an opportunity
to amend or modify such material, data, software or products to meet the requirements
of iNamics.
11.3 Malicious Code:
Any material, data, software or products placed on iNamics' servers by or through
You shall be free of any and all malicious code, including without limitation, disabling
devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer
viruses and mechanisms that may disable or negatively impact the servers.
12. LIMITED WARRANTY; LIMITATION OF DAMAGES:
12.1 INAMICS PROVIDES SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF iNamics
SERVICES IS AT YOUR SOLE RISK. INAMICS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS,
EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
YOU HEREBY AGREE THAT THE TERMS OF THIS AGREEMENT SHALL NOT BE ALTERED DUE TO CUSTOM
OR USAGE OR DUE TO THE PARTIES’ COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER
THIS AGREEMENT.
12.2 NEITHER PARTY OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS,
PARTNERS, VENDORS AND LICENSORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE
LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES,
OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, ERRORS, DEFECTS, DELAYS
IN OPERATION, OR TRANSMISSION, OR ANY BREACH HEREUNDER, REGARDLESS OF WHETHER THE
OTHER PARTY HAS BEEN ADVISED OF SUCH DAMAGES OR THEIR POSSIBILITY.
12.3 You agree that the total liability of iNamics and its subsidiaries, affiliates,
officers, employees, agents, partners, vendors and licensors and Your sole remedy
for any claims regarding the Services is limited to the credits set forth in the
Service Level Agreement.
12.4 iNamics will exercise no control over the content of the information passing
through iNamics' network except those controls expressly provided herein.
13. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights:
13.1 Except for rights expressly granted herein, this Agreement does not transfer
any intellectual or other property or proprietary right to You. All right, title,
and interest in any product or service provided to You is solely the property of
iNamics and its vendors and licensors. These products and services are only for
Your use in connection with the Services.
13.2 You hereby represent and warrant to iNamics that You have the right to use
any patented, copyrighted, trademarked or proprietary material which You use, post,
or otherwise transfer to or by way of iNamics servers.
14. Hardware, Equipment, and Software:
You are responsible for and must provide all phones, phone services, computers,
software, hardware, and other services necessary to access the Services. iNamics
makes no representations, warranties, or assurances that Your equipment will be
compatible with iNamics services.
15. Indemnification:
You shall defend, indemnify, save, and hold iNamics and its subsidiaries, affiliates,
officers, employees, agents, partners, vendors and licensors harmless from any and
all demands, liabilities, losses, costs, and claims, including reasonable attorneys'
fees, asserted against them that may arise or result from Your breach of this Agreement,
Your negligence or willful misconduct or any of Your services or products.
16. Miscellaneous:
16.1 Governing Law; Jurisdiction; Forum; Attorneys’ Fees:
This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio without regard to its conflicts of laws or its principles. You
agree, in the event any claim or suit is brought in connection with this Agreement,
to the exclusive jurisdiction and venue of the courts of Cuyahoga County, Ohio.
In any action to enforce this Agreement, including, without limitation, any action
by iNamics for the recovery of fees due hereunder, You shall pay iNamics reasonable
attorneys' fees and costs in connection with such action.
16.2 Age and Capacity:
You hereby represent and warrant that You and any person to whom You grant access
to Your iNamics account have reached the age of eighteen and that You are not subject
to a limitation on Your ability to enter into this Agreement.
16.3 Severability:
In the event that any one or more of the provisions contained herein shall, for
any reason, be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any of the other provisions
of this Agreement, and this Agreement shall be construed as if such provision(s)
had never been contained herein, provided that such provision(s) shall be curtailed,
limited, or eliminated only to the extent necessary to remove the invalidity, illegality,
or unenforceability.
16.4 Waiver; Modification:
No waiver of any breach of any of the provisions of this Agreement shall be deemed
a waiver of any preceding or succeeding breach of this Agreement. No such waiver
shall be effective unless it is in writing signed by the parties hereto, and then
only to the extent expressly set forth in such writing. No modification of this
Agreement shall be effective unless it is in writing and signed by the parties,
and then only to the extent set forth in such writing. We may modify or amend this
Agreement, including the Service Level Agreement and the rates and fees, from time
to time. Unless otherwise provided in this Agreement, all such modifications or
amendments shall be effective immediately upon posting on the Website. You may request
a copy of the revised Agreement by e-mailing us at
customerservice@inamics.com. YOUR CONTINUED USE OF YOUR ACCOUNT AND/OR THE
SERVICES AFTER THE NOTICE PERIOD WILL BE CONCLUSIVELY DEEMED TO BE ACCEPTANCE BY
YOU OF ANY SUCH MODIFICATIONS OR AMENDMENTS.
16.5 No Assignment:
No benefit or duty under this Agreement shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt
to do so shall be void.
16.6 Force Majeure:
Except for monetary obligations, this Agreement and Your obligations hereunder shall
not be affected or impaired because iNamics is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by reason
of Force Majeure Event and iNamics' obligations under this Agreement shall be
suspended by any such Force Majeure Event. “Force Majeure Event” is defined as any
cause beyond iNamics' reasonable control or anticipation, including, without
limitation, acts of war, acts of God, terrorism, earthquake, hurricanes, flood,
fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental
act, insurrections, epidemics, quarantines, inability to procure materials or transportation
facilities, failure of power, restrictive governmental laws or regulations, condemnation,
acts of third parties, failure of the Internet or other reason that is beyond iNamics'
reasonable control.
16.7 Survival:
Certain sections of this Agreement shall survive termination.
16.8 Entire Agreement; Third Party Beneficiaries:
This Agreement constitutes the entire agreement for provision of the Services to
You and supersedes all other prior agreements and understandings, both written and
oral, between the You and iNamics with respect to the Services. You understand and
agree that iNamics and You intend to include, as the sole third party beneficiaries
of this Agreement, iNamics' software vendors, with all rights and remedies available
as if such vendors were a party to this Agreement.
iNamics Standard Server Maintenance & Monitoring Service Agreement (MSPSA)
Legal Clauses
1. WHOLE AGREEMENT: This agreement(“Agreement”) shall govern the managed
IT services provided, as outlined in this section (“Services”) to the customer identified
(“Customer”) by iNamics Corporation (“iNamics”).
iNamics Standard Server Maintenance & Monitoring Service Agreement (MSPSA)
1. iNamics I.T. Services are Typically Provided on an Hourly Basis, unless otherwise
stated – The nature of the I.T. Industry is that technology is often unpredictable;
and no technician can every understand all the complexities of a situation, which
always has unique characteristics. Therefore, iNamics managed IT services are provided
typically on a per hour basis at either our published standard hourly rate or at
a rush rate, billed in 15 minute increments. If a service is to be provided based
on a fixed quotation, that service price will be stated in writing up-front, in
writing, and approved before any work will begin. Work approval can be provided
by filling out and signing our “Technical Support Services Form”. Below are additional
details:
a. Our standard rate is for work completed during our regular business hours, 8:30
AM to 5:00 PM, (Eastern Standard Time) Monday through Friday, excepting holidays.
At this rate, we will respond within 48 to 64 hours if it is a service call at the
Customer’s facility, or an issue which can be serviced by phone.
b. If the Customer needs faster service or is in a critical situation, we can respond
within four (4) hours at our rush rate.
c. We provide this two rate structure so that we are able to immediately respond
to the needs of our Customer while still accommodating our current workload. We
anticipate that most work will be billed at our standard, lower rate for non-critical
work.
2. Based on Information Provided - Our estimates are based often on an analysis
and assessment of the equipment in question by either the equipment being delivered
to us by the Customer or from a visit to the Customer’s facility by our staff; where
we have collected as much information as possible during a limited length of time.
This “consultation period”, by nature (where we evaluate and discuss the condition
and behavior of the complex equipment in question), takes time, knowledge and expertise
which may or may not be readily available at the time of this consultation. Further
research may be needed which could result in a charge. During our initial analysis
or visit, our certified personnel reviews the status of the Customer's current
network and equipment, and reviews the desired fixes or changes before conducting
any work.
3. Initial Work - Typically, based on our analysis and assessment, when providing
any technical services for a customer, initial work often requires a much more concentrated
effort and will take more time than eventually we will spend to maintain a Customer's
computer equipment on an on-going basis. Below is an explaination of how we charge
for this work:
a. Invoices are issued at the completion of any approved work, or at the end of
each week for on-going work and are due upon receipt. Credit cards are accepted.
Checks are preferred.
b. Our work which is completed is noted in as much detail as possible on our invoices,
which will be either mailed, emailed or both -- your choice.
c. Upon receipt of an invoice, if the Customer has any questions regarding the work
completed by iNamics, we ask that they contact us immediately by calling (216) 916-0196,
ext. 3014, or by writing an email to customerservice@inamics.com, so that we can
make any necessary adjustments. The grace period for challenging an invoice is 3
days after receipt. After this, it is assumed the charges are correct and they won’t
be challenged.
4. Managed IT Services Provided – When asked to maintain a network or equipment
on an on-going or contractual basis, depending on what's already in place at
the Customer's facility, we typically work with our Customer to devise an acceptable
maintenance, back-up and disaster recovery scheme. This planning is critical.
a. Typically, at the beginning of an engagement as a “Managed IT Service provider”
(MSP) for a new customer, we conduct a server and equipment analysis & provide
a basic tune-up.
b. We may at that time re-configure a Customer’s servers and/or network, which may
or may not entail the purchase of new or used equipment. The Customer will be notified
of any recommendations and will be responsible for any out-of-pocket expenses as
described in the Customer’s agreement and/or contract arrived at with iNamics.
c. Any planned work to implement will always be approved by the Customer before
iNamics proceeds with any work. This approval, however, can be given verbally or
in writing.
d. Some work may be needed to be completed after regular business hours. Any work
completed after normal business hours or on weekends are billed at a rush rate.
Any rush work is described to the Customer and approved by them beforehand.
i. An emergency phone number is available to Customers in case they need to reach
iNamics personnel after hours.
ii. In an emergency situation, iNamics will always do its best to respond as quickly
as possible, essentially remaining “on-call” for the Customer as needed, for the
duration of the emergency.
e. After an initial service at a Customer’s facility, iNamics plans to achieve making
the Customer's I.T. operations run smoother and more efficiently, without unpredicted
interruptions, while preventing crashes and severe issues from potentially occurring.
This is a distinct advantage in hiring iNamics for on-going maintenance and service.
5. Recommendations - The most pressing issue for many Customers requiring service
is their back-up and disaster-recovery procedures. Many companies unfortunately
don’t have plans in place. iNamics can make recommendations on how to achieve an
objective of having a fully recoverable back-up and disaster-recovery solution.
Further purchase of equipment and software may be necessary. iNamics typically purchases
any equipment on the client's behalf and bills them separately, with pre-approval.
a. Critical Items - In most instances, before iNamics begin any work, critical items
need to be addressed urgently, or else unforeseen interruptions may occur at the
Customer's operations. If anticipated, iNamics can address I.T. issues quickly,
working with the participation of the Customer, making quick decisions in purchasing
equipment and/or software. On-going maintenance typically can begin as soon as the
Customer approves it, but until recommendations are implemented, there may still
be interruptions.
6. Customer Approval - iNamics will make recommendations to Customers for any upgrades
or improvements to the overall functionality of their computer(s), network, and
I.T. infrastructure. If our recommendations in hardware and software upgrades are
approved by the Customer, iNamics will take the responsibility to see that the hardware
and/or software is properly installed, as planned. If any of our recommendations
are not approved by the Customer, the Customer should indicate that they did not
approve our recommendations. This indication can come either verbally or in writing.
7. Maintaining & Monitoring Client's Systems & Providing On-Call Remote
Technical Support – When responsible for a Customer’s computer(s), network and/or
systems, once iNamics has completed any initial concentrated effort to improve a
Customer's I.T. infrastructure, an estimated amount of time and work may be
needed per month for maintaining and monitoring the Customer's equipment. iNamics
can be made available for technical on-going Phone Support for personnel in the
field or at the Customer’s office. On-call services and a Help Desk is available
and may or may not be included in a service plan, or monthly expense.
a. Any on-going contracted service work will be billed monthly at the anticipated
number of hours at either our standard rate or rush rate. The Customer is obligated
by to pay iNamics for the length of a service contract as noted on the final agreement.
b. The amount provided on a “Service Contract Agreement” is a “retainer”, which
guarantees that work will be completed and iNamics will have the qualified staff
necessary to complete it.
c. iNamics billing cycle for maintenance and monitoring begins starting at the end
of any initial recommended work is completed.
d. If the anticipated hours budgeted during any month are exceeded, then this exceeded
amount will be billed separately at the end of that month.
e. All iNamics bills are noted properly as to which employee did the work and the
amount of time spent.
f. Maintenance may include testing and installation of server or computer software
upgrades and patches.
g. At any time, work may require the direct participation of the Customer in helping
our staff as necessary, knowing what the implications are on a per-install basis.
h. Nothing will be done without the Customer's prior approval and knowledge,
when necessary. This approval can be given verbally or in writing.
i. Major upgrades, patches or installations most likely will not interrupt the Customer's
standard operations. Most often this work will be completed after hours or during
preannounced down-time, with the Customer's approval.
j. Maintenance may require that iNamics personnel have access to the Customer's
facility which will be prearranged with the client prior to our visit.
k. Ultimately, the responsibility of the equipment remains with the Customer. However,
our experience, guidance and expertise will most likely prevent issues from re-occurring.
8. Off-site Services – In an on-going service plan, monitoring can be done offsite
at our facility where iNamics personnel are logged into the Customer's servers
through the Internet using a VPN (virtual PRIVATE network). The Customer may or
may not be aware of monitoring at any one time. iNamics will have full access, and
the Customer provides full-permission to do so.
9. Help-Desk Services - A Help-Desk can be readily made available for a Customer,
their associates and employees as outlined in the contract between iNamics and Customer.
If a Help-Desk is included, then the following is noted:
a. iNamics will be available for remote, call-in technical support for the Customer's
employees, in the office or out in the field, from 8:30 AM until 5:00 PM Eastern
Standard Time, Monday through Friday, except holidays.
b. Those who the Customer authorizes can reach our technical support help-desk by
calling (800) 368-7416 or (216) 916-0196, extension 3.
c. For emergency technical support, a number will be supplied, however calls after
hours may be billed extra at our rush rate, in 15 minute increments.
d. The amount of stated hours per month of reserved technical support time is noted
on the monthly invoices, if this service is included.
Work Orders are subject to iNamics Terms and Conditions of Sale, which are provided
at www.inamics.com/legal.aspx. Customer is responsibility for staying abreast of
any changes or updates by visiting this page. Changes and updates are made with
or without notice.
Legal Clauses approval and knowledge, when necessary. This approval can be given
verbally or in writing. i. Major upgrades, patches or installations most likely
will not interrupt the Customer's standard operations. Most often this work
will be completed after hours or during preannounced down-time, with the Customer's
approval. j. Maintenance may require that iNamics personnel have access to the Customer's
facility which will be prearranged with the client prior to our visit. k. Ultimately,
the responsibility of the equipment remains with the Customer. However, our experience,
guidance and expertise will most likely prevent issues from re-occurring.
8. Off-site Services – In an on-going service plan, monitoring can be done offsite
at our facility where iNamics personnel are logged into the Customer's servers
through the Internet using a VPN (virtual PRIVATE network). The Customer may or
may not be aware of monitoring at any one time. iNamics will have full access, and
the Customer provides full-permission to do so.
9. Help-Desk Services - A Help-Desk can be readily made available for a Customer,
their associates and employees as outlined in the contract between iNamics and Customer.
If a Help-Desk is included, then the following is noted: a. iNamics will be available
for remote, call-in technical support for the Customer's employees, in the office
or out in the field, from 8:30 AM until 5:00 PM Eastern Standard Time, Monday through
Friday, except holidays. b. Those who the Customer authorizes can reach our technical
support help-desk by calling (800) 368-7416 or (216) 916-0196, extension 3. c. For
emergency technical support, a number will be supplied, however calls after hours
may be billed extra at our rush rate, in 15 minute increments. d. The amount of
stated hours per month of reserved technical support time is noted on the monthly
invoices, if this service is included.
Work Orders are subject to iNamics Terms and Conditions of Sale, which are provided
at www.inamics.com/legal.aspx. Customer is responsibility for staying abreast of
any changes or updates by visiting this page. Changes and updates are made with
or without notice.
Legal Clauses but not limited to, cable, non-inside wiring, conduit, racks, telecommunications
equipment, electronic equipment, and any associated hardware (“Facilities”) at each
premises identified herein (“Premises”); provided that Customer shall be responsible
for all inside wiring and related expense. Customer hereby grants iNamics the right
to enter Customer-owned Premises from time to time for installation, repair and/or
maintenance, as reasonably requested by iNamics. If the Premises are owned by a
third party, this Service Agreement will be contingent upon iNamics’ ability to
secure a right of entry onto said Premises to provide the Services and for which
Customer agrees to reasonably assist iNamics in obtaining such right to install
the Facilities. Customer will not relocate, repair, or disturb Facilities without
iNamics’ prior written consent, and Customer will promptly notify iNamics of any
known or potential damage to Facilities.
3. ACTIVATION AND/OR DELIVERY: iNamics will notify Customer upon activation
of Services and may request Customer’s participation in promptly testing and accepting
the Services. The Services will commence upon completion of iNamics’ testing and
Customer’s acceptance of the Services (“Service Commencement Date”). Actions by
Customer that prevent or delay activation, testing or acceptance shall not delay
the Service Commencement Date.
4. FACILITY ACCESS AND AVAILABILITY: Customer acknowledges that iNamics may
be required to purchase access to third party facilities in order to deliver service.
Customer further acknowledges that availability of these facilities is based on
the best information available prior to the Contract Date including third party
representations and government regulations. If prior to service delivery and activation,
facilities are determined to be unavailable as a result of changes to either of
the conditions mentioned in the preceding sentence; iNamics may modify this agreement
to reflect the impact of such changes. If any such modification includes a price
increase, the customer may cancel the agreement upon written notice.
5. TERM: This Agreement shall be in effect commencing on the “Effective Date”.
The term set forth herein (“Initial Term”) shall commence on the Service Commencement
Date. After expiration of the Initial Term, this Agreement shall automatically renew
for additional terms equal to the length of the Initial Term (“Renewal Term”), unless
either party gives written notice at least ninety (90) days prior to the expiration
of the Initial Term or subsequent Renewal Term.
6. PAYMENT: Customer agrees to pay the invoices, fees, taxes and surcharges
(collectively “Service Fees” and noting that such taxes and surcharges may change
from time to time) set forth herein:
a. The Service Fees will accrue beginning on the Service Commencement Date, and
will be billed either monthly in advance or monthly in arrears for usage-based Services.
b. Any and all installation, activation and other non-recurring fees for items such
as equipment or consulting services will be billed on separate invoice(s) as a non-recurring
fee. c. Payments shall be made by check payable to iNamics, credit card or by electronic
transfer as mutually agreed, and are due upon receipt of invoice. d. Interest will
accrue on past-due balances at one and a half percent (1.5%) per month for any payments
not made within fifteen days (15) calendar days of invoice date. e. Should iNamics
use legal resources to collect any balance due under this Agreement, Customer agrees
to pay all legal fees incurred by iNamics for such collection.
7. DISCLAIMER OF WARRANTIES/SERVICE CREDITS: INAMICS MAKES NO WARRANTIES
TO CUSTOMER WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, AND INAMICS EXPRESSLY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE:
Service credits shall be Customer’s sole remedy in the event of any failure of the
Services. The total amount of service credits that will be extended to Customer
shall be limited to 100% of one (1) month’s recurring charges in any single monthly
billing period.
8. LIMITATION OF LIABILITY: In no event shall either party be liable for
any indirect, consequential, incidental, or special damages, however caused and
on any theory of liability arising out of this Agreement, or the Services provided
hereunder, even if such party has been informed of the possibility of such damages.
Customer agrees that the amounts payable hereunder by Customer are based in part
upon these limitations and further agrees that these limitations shall apply despite
any failure of essential purposes of any limited remedy.
9. TERMINATION: If either party defaults in the performance of any material
provision of this Agreement, then the non-defaulting party may give written notice
to the defaulting party that if the default is not cured within ten (10) calendar
days (in the case of a monetary default) or thirty (30) calendar days (in the case
of a non-monetary default), this Agreement will be terminated. iNamics may suspend
the Services between such time that Customer receives a notice of monetary default
and such time that Customer cures such default. If iNamics terminates this Agreement
as a result of Customer’s default, Customer shall pay as liquidated damages the
sum of all remaining monthly Service Fees (as well as any past due balances) due
under the balance of the Agreement as well as any and all costs of canceling third-party
services related to this Agreement.
10. RESTRICTIONS ON USE: Customer agrees that it shall not sell the Services
as a whole to others, and that it (and others with access through Customer to the
Services) will abide by iNamics’ Terms and Conditions for Use of Service (TCUS)
as published at www.iNamics.com/legal.aspx, as periodically revised. Inability of
Customer to adhere to the TCUS constitutes a material default of this Agreement
for which iNamics may terminate this Agreement as outlined in Paragraph 9.
11. INDEMNIFICATION: The parties agree to indemnify and hold harmless the
other, their respective officers, agents, employees, contractors, subcontractors,
suppliers, invitees and representatives, from and against any and all third party
claims of loss, damages, liability, costs and expenses (including reasonable attorneys’
fees and expenses) arising, directly or indirectly, in whole or in part, out of
their performance or failure to perform under this Agreement.
12. FORCE MAJEURE: iNamics’ ability to provide the Services may be impeded
by events or actions outside of iNamics’ reasonable control, including, without
limitation, acts of God, floods, fires, hurricanes, earthquakes, acts of war, labor
actions, failure of third-party suppliers, changes in applicable laws and regulations,
or any similar actions or events (“Force Majeure”). iNamics shall not be responsible
to Customer for any failure to provide the Services due to a Force Majeure event.
Customer shall not be liable for Service Fees during any Force Majeure period during
which iNamics is unable to provide Services.
13. CHANGES: In the event that Customer desires to change the scope of Services,
Customer shall provide iNamics with a project change request in an agreed upon form
setting forth the requested change. No project change request shall be binding on
iNamics until accepted and executed by iNamics.
14. NOTICES: Notices required by this Agreement shall be made in writing
by personal delivery or mail addressed as set forth herein. Notices shall be deemed
given upon delivery, if delivered personally; or in four (4) business days after
being deposited in the U.S. Mail as first-class; or in one (1) business day after
depositing with a nationally recognized overnight delivery service. For iNamics,
notices shall be sent to: P.O. Box 2, Chagrin Falls, OH 44022. For Customer, notices
shall be sent to the address provided on this Agreement or as instructed in correspondence.
15. ASSIGNMENT: This Agreement shall be binding upon the parties and their
respective successors and assigns. Customer shall not assign or otherwise transfer
its rights hereunder or any interest herein without prior written consent of iNamics,
provided that either party may freely assign this Agreement to a subsidiary, affiliate,
parent, or purchaser of all or substantially all of its assets, and further provided
that Customer shall be secondarily liable for its obligations in such an event.
16. ARBITRATION/GOVERNING LAW: All claims arising out of this Agreement shall
be resolved by arbitration in accordance with the then current rules of the American
Arbitration Association by a single arbitrator. The arbitrator shall not be authorized
to award punitive damages. The arbitration will be held in the county of Cuyahoga,
Cleveland, Ohio. This Agreement shall be governed and construed in accordance with
the laws of the Commonwealth of Ohio without giving effect to any conflict of law
principles.
17. ENTIRE AGREEMENT/SEVERABILITY/NON-WAIVER: This Agreement constitutes
the parties’ entire understanding related to the subject matter hereof. Any provision
that is determined to be invalid shall not invalidate the remaining provisions hereunder.
The failure of either party to enforce any right available to it with respect to
any breach or failure by either party shall not be construed to be a waiver of such
right with respect to any other breach or failure.
18. CONFIDENTIALITY: Any purchase Agreement entered into is considered confidential
and neither its form nor contents shall be disclosed by either party.
19. NON-SOLICITATION: During the term of this Agreement, each party agrees
that without the prior written consent of the other party it will not directly or
indirectly solicit for employment or employ any person employed by the other party.
Any employee who has been dismissed by or resigned from either party at least six
(6) months prior to any solicitation may be freely solicited and employed. If Services
Include Network Usage:
* If this Agreement entails bandwidth provided by iNamics, then the following information
is pertinent:
Bandwidth usage levels are determined by traffic samples taken every five minutes.
The five minute peak bandwidth data points are aggregated into one-hour averages.
These one-hour averages are collected for the month and then the top 5% are eliminated.
The bandwidth charge is based on the next highest remaining hourly average. iNamics'
bandwidth at its Cleveland data facility allows for 10 MB bursts, without additional
fees. Incremental charges for usage above your base bandwidth commitment will only
apply if your usage, as defined above, exceeds your contracted bandwidth in more
than 5% of the monthly samples.
APPENDIX A. MICROSOFT SOFTWARE USE – TERMS AND CONDITIONS
This document concerns your use of Microsoft software, which includes computer software
provided to you by iNamics as described below, and may include associated media,
printed materials, and “online” or electronic documentation (individually or collectively
“SOFTWARE PRODUCTS”). iNamics does not own the SOFTWARE PRODUCTS and the use thereof
is subject to certain rights and limitations of which iNamics needs to inform you.
Your right to use the SOFTWARE PRODUCTS is subject to your agreement with iNamics,
and to your understanding of, compliance with and consent to the following terms
and conditions, which iNamics does not have authority to vary, alter or amend.
1. DEFINITIONS: For purposes of this Appendix, the following definitions shall apply:
“Client Software” means software that allows a Device to access or utilize the services
or functionality provided by the Server Software. “Device” means each of a computer,
workstation, terminal, handheld PC, pager, telephone, personal digital assistant,
“smart phone”, or other electronic device. “Server Software” means software that
provides services or functionality on a computer acting as a server. “Redistribution
Software” means software described in Paragraph 4 (“Use of Redistribution Software”)
below.
2. OWNERSHIP OF SOFTWARE PRODUCTS: The SOFTWARE PRODUCTS are licensed to iNamics
from an affiliate of the Microsoft Corporation (“Microsoft”). All title and intellectual
property rights in and to the SOFTWARE PRODUCTS (and the constituent elements thereof,
including but not limited to any images, photographs, animations, video, audio,
music, text, and “applets” incorporated into the SOFTWARE PRODUCTS) are owned by
Microsoft or its suppliers. The SOFTWARE PRODUCTS are protected by copyright laws
and international copyright treaties, as well as other intellectual property laws
and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not
transfer any ownership of SOFTWARE PRODUCTS or any intellectual property rights
to you.
3. USE OF CLIENT SOFTWARE: You may use the Client Software installed on your Devices
by iNamics only in accordance with the instructions, and only in connection with
the services, provided by you by iNamics.
4. USE OF REDISTRIBUTION SOFTWARE: In connection with the services provided to you
by iNamics, you may have access to certain “sample,” “redistributable” and/or software
development (“SDK”) software code and tools (individually and collectively “Redistribution
Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION
SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS
CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO iNamics, WHICH
TERMS MUST BE PROVIDED TO YOU BY iNamics. Microsoft does not permit you to use any
Redistribution Software unless you expressly agree to and comply with such additional
terms, as provided to you by iNamics.
5. COPIES: You may not make any copies of the SOFTWARE PRODUCTS; provided, however,
that you may (a) make one (1) copy of Client Software on your Device as expressly
authorized by iNamics; and (b) you may make copies of certain Redistribution Software
in accordance with Paragraph 4 (Use of Redistribution Software). You must erase
or destroy all such Client Software and/or Redistribution Software upon termination
or cancellation of your agreement with iNamics, upon notice from iNamics or upon
transfer of your Device to another person or entity, whichever first occurs. You
may not copy any printed materials accompanying the SOFTWARE PRODUCTS.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY: You may not
reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only
to the extent that applicable law, notwithstanding this limitation expressly permits
such activity.
7. NO RENTAL: You may not rent, lease, lend, pledge, or directly or indirectly transfer
or distribute SOFTWARE PRODUCTS to any third party, and you may not permit any third
party to have access to and/or use the functionality of the SOFTWARE PRODUCTS.
8. TERMINATION: Without prejudice to any other rights, iNamics may terminate your
rights to use the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions.
In the event of termination or cancellation, you must stop using and/or accessing
the SOFTWARE PRODUCTS, and destroy all copies of the SOFTWARE PRODUCTS and all of
its component parts.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY
FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY iNamics AND NOT BY MICROSOFT
OR ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT: Any product support for the SOFTWARE PRODUCTS is provided to
you by iNamics and is not provided by Microsoft or its affiliates or subsidiaries.
11. NOT FAULT TOLERANT: THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT
FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS
OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD LEAD TO DEATH,
PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS: The SOFTWARE PRODUCTS are of U.S. origin for purposes of
U.S. export control laws. You agree to comply with all applicable international
and national laws that apply to the SOFTWARE PRODUCTS, including U.S. Export Administration
Regulations, as well as end-user, end-use and destination restrictions issue by
U.S. and other governments. For additional information, see
http://www.microsoft.com/exporting/ .
13. LIABILITY FOR BREACH: In addition to any liability you may have to iNamics,
you agree that you will also be legally responsible directly to Microsoft for any
breach of these terms and conditions.
THIS SERVICE LEVEL AGREEMENT (SLA) DEFINES GUARANTEED SERVICE LEVELS PROVIDED TO
YOU BY INAMICS.
I. Technical Support: iNamics Corp. (Company) will set up and configuring
your account at an additional charge. Once your account is set up and operating,
at its discretion, Company can provide extra assistance or support for web applications,
scripts, or components, either from third parties, those provide by us or those
developed by you. Call for more information.
E-mail Technical Support: Email hours for business accounts: 24 hours, 7
days per week, 365 days of the year. Email Address: support@inamics.com
Phone Technical Support: Phone Hours: 8:30 AM to 5 PM Eastern Standard time,
Monday through Friday, excluding U.S. national holidays
Phone Number: 216-916-0196, ext 3014 for receptionist.
Upon contacting support you will be required to provide your account username and
a full description of the problem including error messages, screenshots, and other
troubleshooting information as requested by technical support personnel. The Company's
response time to technical support issues depends on the level of purchased support
service, the complexity of the inquiry and support requests volume. The Technical
Support Department assigns the highest priority to customer inquiries related to
the servers' unavailability. These issues are addressed first upon notification
from a customer. Time to respond guarantee does not apply to any inquiries that
require extensive research and testing.
II. Billing and Other Account Related Inquiries: For billing inquiries, contact
Billing Department. Hours: 8:30 AM to 4:30 PM Eastern Standard time, Monday through
Friday, excluding U.S. national holidays Phone: 216-916-0196, ext 3014 Email: customerservice@inamics.com.
Please note: Company must receive notice of billing disputes within sixty days of
the date your credit card was charged for services. Sales. For sales inquiries,
contact Sales Department. Hours: 8:30 AM to 5 PM Eastern Standard time, Monday through
Friday, excluding U.S. national holidays Phone: 216-916-0196 Email: sales@inamics.com.
III. Escalation: If you have unresolved concerns with Company's service
or technical support issues, please contact the Customer Support Manager at customerservice@inamics.com.
The initial response should arrive within one business day. As issues may be complex
or require extensive investigation, resolution cannot be guaranteed within any certain
time period.
IV. Control Panel and Server Management: The Company's Web Hosting services
do not include installation of any third-party software beyond the standard configuration
outlined in your plan's description. Requests for modification to the standard
configuration will be considered on a case-by-case basis. Approval of such modifications
will be at the Company's sole discretion and will be based upon maintaining
functionality, usability, security, and stability in the shared server environment.
V. Scheduled Maintenance: To ensure optimal performance of the servers, the
Company will perform routine maintenance on the servers on a regular basis, sometimes
requiring servers to be removed from service. The Company reserves one hour of server
unavailability per month for maintenance purposes. This server unavailability will
be excluded from the uptime calculations. The maintenance is typically performed
during off-peak hours. The Company will provide You with advanced notice of maintenance
whenever possible, but is not obligated to do so.
VI.Emergency Maintenance: Under certain circumstances the Company may need
to perform emergency maintenance, such as security patch installation or hardware
replacement under Hardware Replacement Guarantee. The company will not be able to
provide You with advanced notice in case of emergency maintenance. This server unavailability
due to emergency maintenance will be excluded from the uptime calculations. Hardware
Replacement Guarantee: Company will use industry standard practices to determine
whether server hardware is functioning properly and will replace non-functioning
hardware with similarly functioning hardware. For hosted services, the company will
replacement hardware as necessary within four hours from the time the problem is
identified. In the case where this time is exceeded, the excess downtime is counted
against Server Availability guarantee.
VII. Network Availability: The Company guarantees at least 99.99% Network
Availability. Network Availability is defined as the ability to pass incoming and
outgoing TCP/IP traffic through the Company's network from/to IP transit provider
(Internet backbone). Servers unavailability resulting from loss of Network Availability
is excluded from servers availability calculations if the Network Availability loss
is caused by any factor(s) beyond the Company's control, including but not limited
to such factors as IP transit provider (backbone) or end user's portion of the
network (commonly known as "last mile") failure, denial of service or similar attacks
directed at the Company's servers or the Company's network.
VIII. Network Availability Monitoring: To verify the Application Server Availability,
the Company will probe router port to which the server is connected every two minutes,
with a 10-second failure threshold. If the probe is not successful, the port is
considered non-operational and NOC personnel on duty are automatically notified.
If two or more consecutive port probes fail, network downtime will be registered
as the number of minutes between the first and the last failed tests. Downtime of
less than five minutes in duration is not recorded. The Company will calculate server
uptime and refund eligibility amounts based on this type of server monitoring.
IX. Servers Availability: Company's primary commitment is to provide
outstanding web hosting service to all customers. To support this commitment, Company
observes the following schedule of remedies for any failure to meet the express
guarantees in this Service Level Agreement.
X. WEB SERVER AVAILABILITY: The Company guarantees at least 99.99% Web Server
Availability. Web Server Availability is defined as the ability to retrieve the
HTTP headers from the hosting server, calculated on a monthly basis. The Company
will not monitor availability of individual web sites but only monitors the server
availability as a whole. Denial of service attacks or other types of attacks directed
toward Company's network of servers resulting in or contributing to downtime
will not be included in Web Server Availability calculations.
XI. Web Server Availability Monitoring: To verify the Web Server Availability,
the Company will probe HTTP service to retrieve HTTP headers on the server every
five minutes, with a 30-second failure threshold. If the probe is not successful,
the server is considered non-operational and is automatically restarted. If restarting
the server does not solve the problem, it is immediately escalated to technical
support and the system administrators. If two or more consecutive server probes
fail, server downtime will be registered as the number of minutes between the first
and the last failed tests. Downtime of less than five minutes in duration is not
recorded. The Company will calculate server uptime and refund eligibility amounts
based on this type of server monitoring.
Any and all guarantees provided by iNamics do not cover availability of specific
applications or servers products (such as ColdFusion or ASP.NET applications) deployed
on Web Server. Performance of such applications largely depends on the quality of
code comprising such applications which is beyond of Company's control.
XII. SQL (DATABASE) SERVER AVAILABILITY: The Company guarantees at least
99.99% SQL (database) Server Availability. SQL Server Availability is defined as
the ability to receive a response from SQL server on port 1433, calculated on a
monthly basis. The Company will not monitor availability of individual SQL databases
but only monitors the server availability as a whole. Denial of service attacks
or other types of attacks directed toward Company's network of servers resulting
in or contributing to downtime will not be included in SQL Server Availability calculations.
XIII. SQL Server Availability Monitoring: To verify the SQL Server Availability,
the Company will open connections to SQL server on port 1433 every five minutes,
with a 30-second failure threshold. If the probe is not successful, the server is
considered non-operational and is automatically rebooted. If rebooting the server
does not solve the problem, it is immediately escalated to technical support and
the system administrators. If two or more consecutive server probes fail, server
downtime will be registered as the number of minutes between the first and the last
failed tests. Downtime of less than five minutes in duration is not recorded. The
Company will calculate server uptime and refund eligibility amounts based on this
type of server monitoring.
XIV. MAIL SERVER AVAILABILITY: The Company guarantees at least 99.5% Mail
Server Availability. Mail Server Availability is defined as the ability to retrieve
the SMTP and POP headers from the mail server, calculated on a monthly basis. The
Company will not monitor availability of individual mail accounts or mailboxes but
only monitors the server availability as a whole. Denial of service attacks, mail
bombing, and other flooding techniques directed toward Company's mail servers
resulting in or contributing to downtime will not be included in Mail Server Availability
calculations. The outgoing email protocol used on the mail server (SMTP) is a "store-and-forward"
type of protocol that does not guarantee immediate delivery of email messages. If
the mail server's first email delivery attempt fails, it will re-attempt delivery
according to a predefined schedule. If the message fails to be sent for 24 to 72
hours, the messages will be returned to the sender.
XV. Mail Server Availability Monitoring: To verify that the server is available,
the Company will probe SMTP and POP services (retrieve SMTP and POP headers) every
five minutes with a 30-second threshold. If either service does not respond, the
service is considered non-operational and is automatically restarted. If rebooting
the server does not solve the problem, it is immediately escalated to technical
support and the system administrators. If two or more consecutive SMTP or POP tests
fail, server downtime will be registered as the number of minutes between the first
and the last failed tests. Downtime of less than five minutes in duration will not
be recorded. The Company will calculate Mail Server Availability and refund eligibility
amounts based on this type of server monitoring.
XVI. Penalty for Non-Compliance - Refunds NETWORK AND SERVERS AVAILABILITY:
If network or server availability for the full month is below the guaranteed level,
the Company will issue a refund to You according to the schedule below. Server availability
Amount of the refund as a percentage of monthly fee 99.0% to server guarantee level
5% of monthly fee credited 98.0% to 98.9% 10% of monthly fee credited 95.0% to 97.9%
15% of monthly fee credited 90.0% to 94.9% 25% of monthly fee credited 89.9% or
below 2.5% credited for every 1% of lost availability up to the maximum total penalty
limit To receive a refund for downtime, you must (a) be in good financial standing
with the Company, and (b) send an email or written refund request to the Billing
Department in the month immediately following the month for which You are seeking
a refund. Refund requests must include your account username and the dates and times
of server unavailability. The Billing Department will compare information provided
by You to the server availability monitoring data the Company maintains. A refund
is issued if the Company can confirm from the monitoring data the server availability
warranting the refund.
XVII. TOTAL PENALTY LIMITS: The total refund to You for any account may not
exceed 50% of the monthly fees charged to that account during the month for which
the refund is to be issued, unless the amount to be refunded is less than $1.00
in which case the refund amount will be $1.00. Only one refund and refund level
is available in any given month.
XVIII. Server Software: Company will exercise industry standard practices
to ensure that all pre-installed software is correctly configured. In case there
is more than one way to configure the software, Company will choose the configuration
it determines, in its sole discretion, to be the most appropriate. Company will
install security patches, updates, and service packs as soon as practical. Software
updates may change system behavior and functionality and as such may negatively
affect your applications. Company cannot foresee nor can it be responsible for service
disruption or changes in functionality or performance due to implementation of software
patches and upgrades. If such disruption or changes occur, Company will provide
its best efforts to remedy the situation as soon as possible after being notified
of the problem by You. Company may be required by its software licensors to upgrade
to the latest versions of the software. Licensor-required upgrades will be performed
free of charge and upon reasonable notice to You. Software upgrades on Company's
servers will occur at Company's discretion upon reasonable notice to You. Company
is not responsible for problems that may arise from incompatibilities between new
versions of the software and your content, regardless of whether it was a requested,
required or discretionary upgrade. Nevertheless, Company will provide its best efforts
to help You to find a workaround. Log processing (web reporting) software is provided
on an "as is" basis. Company will not be held responsible for bugs in the software
or for interpreting the reports generated by the software. Company, in its sole
discretion, can upgrade the software to newer versions or replace it with different
software upon providing a reasonable notice to You. Company cannot foresee nor will
it be responsible for any incompatibility of newer versions and other software You
may choose use in conjunction with the log processing software.
XIX. Storage Capacity; Data Transfer; Server Resources: Each account is allotted
storage capacity and data transfer amounts on Company's servers according to
the plan and options selected by You. This storage size and data transfer allotments
can be increased for an additional charge up to the maximum amount allowed for each
plan or service. The servers may stop accepting, processing, or delivering data
when the purchased limit is reached thus causing server unavailability or data loss.
Company shall not be held responsible for such unavailability or data losses. Your
Web and FTP servers are configured to log all requests to the log files. The normal
retention period is one month. The log files are stored in shared server space and
not counted towards account's allotted storage capacity. The maximum size of
stored log files is limited 1 Gigabyte. When this limit is exceeded, the oldest
log files are deleted to bring the usage within allowed limit. Shared servers resources
are shared among all accounts hosted on the same server. Company configures servers
in such a way so the accounts are separated from each other to the maximum possible
degree. However, due to its nature, shared resources accessibility level cannot
be guaranteed.
XX. Ownership of Data: All data created by You and/or stored by You within
Company's applications and servers are considered by Company to be your property
and is for your exclusive use unless access is permitted by You. Company shall allow
access to such data by authorized Company personnel and shall provide access in
compliance with Company's Privacy
Policy. Company makes no claim of ownership of any web server content, email
content, or any other type of data contained within the account holder's server
space and applications on Company's servers, unless Company has a good faith
belief that such content or data is owned by Company, its agents, affiliates or
vendors.
XXI. Data Integrity: Company employs sophisticated RAID techniques to ensure
the integrity of the data on its servers; the data is written to two disks simultaneously
to prevent data loss in the event of hardware failure. Company performs routine
server backups for disaster recovery purposes only. Server backup scope and scheduling
is at Company's sole discretion. COMPANY SHALL NOT PERFORM BACK UP OR RESTORE
THE DATA UPON YOUR REQUEST UNLESS SUCH BACK UP IS PROVIDED AS A SERVICE UNDER YOUR
PURCHASED PLAN.
XXII. Data Retention: COMPANY SHALL NOT BE RESPONSIBLE FOR RETAINING ANY
OF YOUR DATA AFTER ACCOUNT TERMINATION. ALL DATA IS DELETED FROM THE SERVERS AFTER
THE ACCOUNT IS TERMINATED AND FROM BACK-UPS DURING SCHEDULED BACK-UP ROTATION. COMPANY
SHALL NOT RESTORE, PROVIDE ON ANY STORAGE MEDIA OR SEND OUT ANY DATA PERTAINING
TO EXISTING OR TERMINATED ACCOUNTS.
XXIII. Customer Responsibilities: To access Company services You must provide
at the very minimum: an Internet connection with sufficient bandwidth and quality
to allow trouble-free browsing and data uploading and downloading; a fully functional
Internet browser; a fully functional POP/SMTP e-mail program (client) or Microsoft
Outlook for MAPI connections to Exchange server; tools to develop and publish content
as You find suitable and necessary; tools to access database servers if such services
are purchased by You.
XXIV. Privacy Statement: Company values the privacy of its customers. Please
refer to Company's Privacy Policy at
Privacy Policy for further information.
Exchange Hosting:
Government or political subdivision which is utilizing iNamics' exchange hosting
and/or other services provided hereunder (“You"). In consideration of the mutual
promises, covenants and agreements hereinafter set forth, iNamics and You agree
as follows:
1. Lawful Use of the Services:
You agree to use iNamics' exchange hosting and/or other services provided hereunder
(the “Services”) only for lawful purposes. In the event that Your use of the Services
violates any law, rule or regulation, iNamics shall have the right to immediately
terminate this Agreement.
2. Provision of Services:
iNamics agrees to provide the Services to You in accordance with the Service Level
Agreement. You hereby agree to comply with the terms and conditions of this Master
Services Agreement, the Appendixes
A: Microsoft Software Use-Terms and Conditions and
B: Research in Motion Use-Terms and Conditions (attached hereto), iNamics' Acceptable
Use Policy, Privacy Policy and No-Spam Policy, each of which are incorporated by
reference herein:
YOU SHALL AT ALL TIMES PROVIDE AND KEEP CURRENT AND UP TO DATE YOUR CONTACT, CREDIT
CARD, IF APPLICABLE, AND BILLING INFORMATION BY CALLING THE COMPANY OR BY LOGGING
INTO YOUR INAMICS ACCOUNT AND UPDATING THIS INFORMATION.
3. Term and Termination:
3.1 Term:
The Agreement term is either the Initial Term or Renewal Term (each, a “Term”) as
defined herein.
3.1a. Monthly Plan Agreement Term:
For Monthly Plans, the Initial Term is defined as the period from the date of Your
initial payment or execution of this Agreement, whichever occurs earlier, through
the remainder of the calendar month in which this Agreement was executed. The Renewal
Term for Monthly Plans is defined as one calendar month beginning at the end of
the Initial Term and each subsequent calendar month thereafter.
3.1b. Contract Plan Agreement Term:
For Contract Plans, the Initial Term is defined as the period from the date of Your
initial payment or execution of this Agreement, whichever occurs earlier, through
end of that month through the next six (6) calendar months (for example, a contract
that begins 4/14 will continue until 10/31), unless the parties have agreed in writing
to a longer contract term. The Renewal Term for Contract Plans is defined as the
six month period beginning at the end of the Initial Term and each subsequent six-month
period thereafter.
3.1c. Automatic Renewal:
This Agreement shall renew automatically at the end of the prior Term unless terminated
in accordance with this Agreement either by You or by iNamics. When a new Term begins,
the then current Master Service Agreement and Service Level Agreement shall replace
in their entirety the previous Master Service Agreement and Service Level Agreement.
The then current Master Service Agreement and Service Level Agreement shall be considered
this “Agreement”. Please review the then current Master Service Agreement and Service
Level Agreement from time to time so that You will be apprised of any changes by
visiting this page.
No-spam Policy: Governs e-mail and newsgroup activities.
Privacy Statement: States iNamics' policy governing the collection, storage,
and use of information gathered through this Website. To view, click
Privacy Policy.
DMCA (Digital Millennium Copyright Act) Policy: If you have a good faith
belief that material on a system or network controlled or operated by iNamics is
infringing upon your copyright, please refer to this policy.