Terms & Conditions
THE FOLLOWING TERMS AND CONDITIONS AFFECT YOUR RIGHTS AND LIMIT OUR LIABILITY. PLEASE READ THEM CAREFULLY.
(PART 1) These Terms and Conditions apply to all High Secured.Com® co-location customers, dedicated server customers, encrypted mail customers, Blackberry Enterprise Server Customers, VOIP customers, Resellers of any High Secured.Com® products or services, other web hosting customers, and by extension, customers of dedicated servers or Web hosting customers in the third party, as well as all others transiting or using High Secured.Com® network or resources including but not limited to e-mail services and critical data storage. Co-Locating, contracting, enrolling, accepting or using any service or equipment provided by High Secured.Com®, constitutes acknowledgement and acceptance of these terms and conditions.
1.1. The following terms and conditions apply to the use of co-located equipment as well as services, software and equipment (hereafter referred to as services) provided by High Secured.Com® by the client (the client), a user of High Secured.Com® services, equipment and/or facility or as defined in the Data Center Service Agreement (the Data Center Service Agreement). The Data Center Service Agreement, if entered into by High Secured.Com® with the Client incorporates these Terms and Conditions therein and forms a part. The Data Center Service Agreement also includes (i) any attachments as noted in the Data Center Service Agreement, (ii) any enrolment and other order forms executed by High Secured.Com® and the Client in connection with the Data Center Service Agreement, and (iii) any modification made by High Secured.Com® as permitted hereunder. If there is a conflict or inconsistency between these Terms and Conditions and another term of the Data Center Service Agreement, the other term of the Data Center Service Agreement will apply provided that section 4.3 will apply in all circumstances unless specifically amended.
1.2. Services are provided solely on the basis of, and are subject to, service, facility and equipment availability. High Secured.Com® is not required to provide universal service and will not provide a service to any person or company who, in the opinion of High Secured.Com®, would compromise the technical, financial or operational integrity of High Secured.Com® or its facilities or network.
1.3 High Secured.Com® is authorized to act as the Client's agent in ordering access connection facilities or other services as required in connection with the provision of the Services ordered by the Client.
1.4. SERVICE AVAILABILITY GUARANTEE
High Secured.Com® is focused on providing highly complex information technology and telecommunication solutions to support mission-critical applications. Based on the nature of said applications and on the expected response from our Clients, High Secured.Com® believes that it is essential to commit to excellence in the provision of those services.
These terms and conditions establish the agreement for the levels of service to which High Secured.Com® commits visa a VI THE CLIENT, based on the level of contracted services.
The following topics are part of the present Service Level Agreement:
Quality of Service Parameters: This refers to all metrics that have been defined as tools to determine if the service complies with all agreed upon specifications, at the moment the contract was signed.
Credits and Penalties: This defines the compensation that High Secured.Com® is obligated to pay THE CLIENT in the event of failure in the compliance of the present Service Level Agreement.
Quality of Service Parameters:
This item describes the ratio of the sum of all the intervals of time when the service, or a specific component part of such service, was available, to the total amount of time within a certain time period.
The service or any of its component parts shall be considered available provided that a Service Interruption has not occurred. A Service Interruption is defined as a condition under which the service does not allow for any kind of operability. Service interruptions caused by the following reasons shall be excluded from this condition, and therefore will not be applicable to the calculation of service availability:
Programmed maintenance tasks.
Failure caused by operation errors or omissions on the part of THE CLIENT or its subcontractors.
Interruptions or failures associated with applications, hardware, or software components in general for which THE CLIENT or its subcontractors are responsible, and whose operation and support are not High Secured.Com® responsibility.
High Secured.Com® will not be responsible to THE CLIENT for direct or indirect losses, loss of profit and other damages and / or harm caused by the interruption or disconnection of services in the event of force majeure, fortuitous cases, governmental instructions and / or judicial order
The total time of non-availability will be calculated as the sum of the partial times corresponding to each incident. For each incident, the time of non-availability will correspond to the period of time elapsed between the moment the incident is recorded in the on-line live ticket claims system or by reporting the incident, toll free to (800) XXX_XXXX and the time that such incident is repaired and the provision of the service has resumed.
High Secured.Com® commits to providing the following Availability Indexes, associated with the services provided to THE CLIENT:
1.5.1 Availability of the Datacenter Infrastructure
The following concepts are grouped under this item:
Provision of alternate power for feeding the equipment, in accordance with specifications in the respective service contract.
Provision of controlled atmospheric conditions, apt for the normal functioning of the equipment. It is established that the following parameters must be maintained: environmental humidity at 45% to 50% and environmental temperature between 68°F to 76°F.
The proper functioning of all physical Security resources provided by High Secured.Com® to ensure the privacy of and inviolability of THE CLILENT´S data and applications: biometric readers, sensors and close circuit TV (CCTV), and permanent security guards.
The availability of Datacenter Infrastructure will not be inferior to 100% of the time, measured accumulatively each month.
1.5.2 Availability of the Datacenters internal data network (LAN):
This concept refers to the highly redundant, high-capacity data network that High Secured.Com® has laid out in the interior of the Data Center, and whose functionality is to provide connectivity from THE CLIENT'S equipment or from the equipment owned by High Secured.Com® to provide service to the Client, to the POP or point of entrance to the DATA CENTER of the national or international networks to which High Secured.Com® has access.
The availability of the Datacenter LAN will not be inferior to 100% of the time, measured accumulatively each month.
1.5.3 Availability of Internet Connection
High Secured.Com® Internet connectivity agreement includes service quality agreements with high availability indexes and is supported by redundant connections. In this way, HIGH SECURED.COM® assures its clients the availability of Internet connections at the technical level as well as at the commercial level.
The availability of Internet connection will not be inferior to 100% of the time, measured accumulatively each month.
1.6 Credits and Penalties
The present section defines the credits HIGH SECURED.COM® is obligated to grant THE CLIENT in the case the service rendered does not match the definitions provided by this Service Level Agreement.
1.7 Credits for Non-availability
High Secured.Com® will update the data related to real availability of the different service components on a monthly basis, as has been defined in item 1.1.
The measurements for the availability and reliability of service are based on a monthly average.
If the average for a certain month falls below the stipulated measurements, High Secured.Com® will credit the client's next monthly bill (or annual bill if client pays yearly) with the apportioned charges corresponding to one day of service charge for each hour or fraction of an hour of failure, up to a maximum of 30 calendar days.
1.8 General considerations upon granting credits for non-compliance
The credits defined in the present document are of a cumulative nature based on each service rendered within a month.
Credits will only be applied to those services (and consequently, the respective monthly fees) that present failures or anomalies in their functioning.
High Secured.Com® will credit a maximum monthly credit value for non-compliance of up to 100% of the monthly fee of the contracted products and services, even in the case that for a particular month the amount of the credit resulting from the application of the aforementioned criteria exceeds said value.
1.9 Rescission of Contract
THE CLIENT may rescind the service contract subscribed with High Secured.Com® without the latter being entitled to any indemnity, under any of the following conditions:
The sum of all credits for non-compliance has reached 100% of the total value of the contracted monthly fee for two subsequent months.
The sum of all credits for non-compliance has reached 50% of the total value of the contracted monthly fee for 4 subsequent months or any six months of the last year or fraction thereof.
2. INSTALLATION AND SERVICE
2.1. The Client will make all necessary preparations required, as set out herein or in the Data Center Service Agreement, to permit installation, maintenance and operation of the Services and will provide High Secured.Com®, and its suppliers of communication services and equipment, reasonable access, of any type, to the Client's equipment, to perform any work required to provide the Services. The Client will have available, at least five days prior to the scheduled installation date, all equipment which the Client is required, as set out herein or in the Data Center Service Agreement, to provide. Impairment of Services due to unavailability or defective equipment and/or software provided by the Client will not relieve the Client of its obligation to pay for the Services.
2.2. If the Client cancels or delays a request for Service or a specific service after installation work has started, but before the Service is fully installed, the Client is liable for any and all installation charges, removal costs, site restoration costs and any applicable termination fee. Payment of these charges, costs and fees will be due on receipt of invoice.
2.3 All racks provided by High Secured.Com® are the property of High Secured.Com® and may not be moved, changed or modified without written approval of High Secured.Com® The Client may not change any locks on racks within the facility or modify, improve or enhance security of racks and cabinets without prior written approval of High Secured.Com® As a rule, for safety, security and fire issues, High Secured.Com® requires access to all racks, cabinets and enclosed spaces within High Secured.Com® facilities.
3. HIGH SECURED.COM®'S RIGHT TO VARY SERVICES
3.1. High Secured.Com® Reserves the right to update, upgrade or otherwise migrate the Client's existing Service(s), products or technologies to service(s), products or technologies which are of equivalent or better quality at no cost or additional charge to the Client, including the migration of services from third party service providers to High Secured.Com® or other third party service providers. The Client will be responsible for the costs necessary to upgrade the Client provided hardware, software and other technologies to access the updated, upgraded or migrated service. The sole recourse for the Client, if the Client is not willing to accept any such update, upgrade or migration is the right to terminate the Data Center Service Agreement by giving a 30 day prior written notice. The Client's written notice to terminate must be received by High Secured.Com® within 15 calendar days of the Client's receipt of written notice of High Secured.Com® intent to update, upgrade or migrate service. High Secured.Com® will waive the right to all Term Contract cancellation penalties for any termination invoked under the terms of this section 3.1.
3.2. Exceeding Contractual Limits: The Client's storage requirement and bandwidth utilization for fixed limit Services must remain within the parameters associated with the Client's account as set out in the Data Center Service Agreement. High Secured.Com® may monitor and enforce the parameters associated with the Client's account. The Client acknowledges that, for Internet service, enforcement may include a refusal to store incoming mail and/or not permit further download traffic on the Client's website.
3.3. Investigations: High Secured.Com® has no obligation to monitor content on the Services. High Secured.Com® has the right to monitor content and service levels electronically from time to time and to disclose any information necessary to: satisfy any law, regulation or other governmental request of competent jurisdiction (Republic of Panama) or to assist High Secured.Com® in the pursuit of any claim against the Client; operate the Services properly; or protect High Secured.Com®., its Clients and service providers. High Secured.Com® reserves the right to refuse to post, transmit, or to remove any information or materials, in whole or in part, that High Secured.Com® determines is unacceptable, undesirable or in violation of the Data Center Service Agreement or these Terms and Conditions.
4. HIGH SECURED.COM®'S RIGHT TO TERMINATE SERVICE
4.1. In addition to High Secured.Com® right to terminate or suspend Services as provided elsewhere in these Terms and Conditions, High Secured.Com®. may at any time discontinue any or all Services, cancel a request for Services and
terminate its obligations under the Data Center Service Agreement without incurring liability upon:
(a) for any material violation by the Client of any of the provisions of the Data Service Agreement and/or these Terms and Conditions;
(b) if the Client becomes bankrupt, insolvent, takes any proceeding seeking relief from creditors, ceases or threatens to cease to carry on business, becomes subject to any execution, seizure or restraint in respect of equipment supplied by High Secured.Com®, fails to provide security to High Secured Com when reasonably requested or otherwise does not meet High Secured.Com® credit requirements;
(c) in the event of any intentional or de facto transfer or assignment of or use of Services supplied by High Secured.Com® which High Secured.Com®, acting reasonably, determines to be an improper use;
(d) where any applicable law prohibits High Secured.Com® from furnishing such Services; or
(e) where any leases, licenses, contracts, easements, rights of way, permits or regulatory authorizations or approvals required, by High Secured.Com®, to provide the Services in accordance with the Data Center Service Agreement, cannot be obtained or renewed without commercially unreasonable expense to High Secured.Com®, or are terminated or revoked for any reason. In connection with termination pursuant to paragraphs (a), (b) and (c), the Client will be responsible for all costs incurred by High Secured.Com® in connection with removing the Services and related equipment and for the termination charges that would have been payable had the Client terminated the Data Center Service Agreement pursuant to section 6 hereof. High Secured.Com® shall have a lien on all Client equipment or property on High Secured.Com® premises and if payment is not made in ninety (90) days of notice of termination, High Secured.Com® shall sell the Client's equipment to recover any amounts due and any amounts remaining, after payment in full, will be forwarded to the Client.
4.2 A termination of the Data Center Service Agreement for any reason will not
affect or prejudice any rights or obligations which have accrued or arisen under the Data Center Service Agreement prior to the time of termination which rights and obligations will survive the termination of the Data Center Service Agreement. In particular, and without limitation to the above, the Client will remain liable to High Secured.Com® for the payment of all sums of money payable to High Secured.Com® under the Data Center Service Agreement up to the date of termination and for the performance of all the obligations that require High Secured.Com® to do or perform certain matters after the termination of the Data Center Service Agreement.
4.3. Remedies notwithstanding any other term of the Data Center Service Agreement or these Terms and Conditions, if High Secured.Com® terminates the Data Center Service Agreement as a result of a breach by the Client of any of the terms of the Data Center Service Agreement or these Terms and Conditions or if the Client terminates the Data Center Service Agreement pursuant to section 6 after it has breached the Data Center Service Agreement or these Terms and Conditions, High Secured.Com® is entitled, in addition to its right to terminate the Data Center Service Agreement, any additional remedies available to it at law for the losses it has suffered as a result of the breach.
5.4. Occasionally, unintentional abuse is misclassified as intentional.
If the Client believes its activity is misclassified, it may appeal to High Secured.Com® senior management. The Client's sole remedy and High Secured.Com® sole liability in respect of any misclassification of activity will be credit for service fees for the duration the misclassification applied to the Client's account.
5.5. Client Assets Located in High Secured.Com® Facilities: High Secured.Com® is entitled to deny the removal of any of the Client's equipment from a High Secured.Com® facility if the Client has outstanding invoices totaling more than ten dollars. If on termination the Client does not settle all outstanding invoices within 90 days High Secured.Com® shall seize and sell the delinquent Client's assets located in High Secured.Com® facility. Should the sale and divestiture of Client assets exceed all amounts owing to High Secured.Com®, High Secured.Com® will send a check in excess amount to the Clients last known mailing address within 30 days of the sale.
6. PRICING AND PAYMENT
6.1 The rates and charges for the Services will be as set out in the
Data Center Service Agreement as amended from time to time in accordance with these Terms and Conditions. High Secured.Com® is not required to refund or credit charges for unused Services except as noted on the Data Center Service Agreement.
6.2. The Client may request, subject to any restrictions set out in the Data Center Service Agreement with respect to a contract for a specified term (a Term Contract), which term is set out in the Data Center Service Agreement, to change to a different High Secured.Com® pricing plan. The Client must submit in writing a request to change the plan to High Secured.Com®. Any such pricing plan change takes effect at the start of the next billing cycle, following High Secured.Com® confirmed receipt and acceptance of the change request.
6.3. The Client will pay all fees and other charges incurred in respect to the Client's account, including charges for any purchases made through the Services and any surcharges incurred while using any supplemental services or features of the Services for which a surcharge is applicable. Unless otherwise expressly noted, all taxes are extra. The Client will pay all applicable taxes, and any access charges relating to the use of the Services, whether such charges are billed by the service provider to High Secured.Com® or directly to the Client.
6.4. Payment Terms: High Secured.Com® will render invoices monthly. The invoice will be sent fifteen (15) days in advance of the due date. The Client may pay its High Secured.Com® account pursuant to the payment options set out in Schedule A. No interest will be charged if the invoice is paid within 15 days of the invoice due date. Any amounts remaining outstanding on or after 15 days after invoice due date are overdue and will be charged interest at the rate of 1.5% per month compounded monthly (19.56% per annum) from the date of the invoice. In addition, at High Secured.Com® discretion, High Secured.Com® may choose to suspend the client's service when an invoice is overdue 15 days. The suspension will continue until the overdue invoice is paid. Acceptance of late or partial payments will not waive any of High Secured.Com® rights to collect the full amount of charges due for the Services, plus interest.
6.5. Disputes arising from an invoice must be made by the Client in writing and received by High Secured.Com® within 60 days from the invoice date. No claim may be made by the Client in respect to an invoice after such period.
6.6. Dishonored payments of Insufficient funds: The Client will reimburse High Secured.Com® for all costs associated with collecting delinquent or dishonored payments in addition to a $50 administration fee.
6.7. Deposit High Secured.Com® will require a deposit from the Client to establish or maintain the Services. The said deposit cannot be used by the Client to pay any invoice or delay any payment. High Secured.Com® may require an increase to the deposit at any time to reflect estimated monthly charges based on actual usage or High Secured.Com® assessment of the Client's ability to pay. High Secured.Com® may, without notice, apply any deposit towards payment of charges due. Ninety days following any termination, any remaining deposit or other credit balance in excess of $10 will be returned by check to the Client's last known mailing address.
6.8. Suspension or Cancellation for Non-Payment: High Secured.Com® may suspend or cancel a Client's Services if the Client has any invoice outstanding 30 days or more. Any Client having any account that is unpaid for three consecutive billing cycles (as described below) may, at High Secured.Com® option, have its files archived or purged and it's services cancelled or suspended. While suspended, the Client's account will continue to accrue monthly or periodic charges for Services subject to the Data Service Agreement. Upon payment of all accrued charges a service reconnection charge equal to the then current set-up fee will be assessed to remove an account from suspension.
6.9. Billing Cycle The High Secured.Com® billing cycle begins on the first day of each month unless noted otherwise in the Data Center Service Agreement. Charges for a new account are prorated based on the number of days remaining after the commencement of Services in the initial month of service at a daily rate equal to the monthly charge divided by 30 days. Charges in a month in which an account is terminated are not pro-rated and will not be refunded except as noted in the Data Center Service Agreement. All Bandwidth Services will be billed in arrears at the end of the monthly billing cycle.
6.10. All installation and equipment charges will be billed at the time that Service is committed for. Installation and equipment charges, registration and set-up fees are non-refundable.
6.11. The Client is entitled upon request to receive copies of its historical account or billing information for the previous 12 billing cycles subject to payment of an administration fee.
6.12. With respect to Services to be billed on a periodic basis, the initial term of the Data Center Service Agreement will commence on the date the first of those Services commences and will automatically renew for successive periods equal in length to the initial term set out in the Data Center Service Agreement until terminated as set forth below. The Client may terminate the Data Center Service Agreement and the use of all or any of the Services at the end of the then current term by providing at least 30 days notice prior to the end of that term. The following cancellation charges, where applicable, will be due and payable immediately:
(a) for month-to-month service, the monthly charge for the month in which that Service will terminate;
(b) for service under a Term Contract, charges for the remainder of the term or in the case of a renewal period until contract termination.
7. CLIENT RESPONSIBILITIES
7.1. Authority High Secured.Com® will only recognize and act on the instructions of those individuals whose names appear on the Data Center Service Agreement or any list of contact names submitted by the Client in writing, as the person(s) authorized to accept, modify or terminate the Services or the Data Center Service Agreement. Only those individuals identified to High Secured.Com® by the Client and whose photo identification is on file with High Secured.Com® may access the Clients equipment located in High Secured.Com® facilities.
7.2. Software License Agreement: The Client will comply with the terms of the Software License Agreement attached to the Data Center Service Agreement and any software license accompanying software provided by High Secured.Com® In the event another software license accompanies specific software provided by High Secured.Com®, that license shall apply to the specific software it accompanies.
7.3. No Proprietary Right: The Client posses no proprietary right or interest in, or any right to use of, any specific type of facility, service, equipment, address, number, process or code associated with any Service except as expressed in the Data Service Agreement. All equipment and software provided by High Secured.Com® is the sole property of High Secured.Com®. The Client's right is limited to the use the equipment and/or software as provided for in the Data Center Service Agreement and/or the Software Licenses.
7.4. Client Information: For purposes of identification, billing and marketing, the Client will provide High Secured.Com®, from time to time, with accurate, complete, and updated information including Client's legal name, address, telephone number(s), email addresses and applicable payment data. The Client will notify High Secured.Com® within 30 days of any such changes to this information.
7.5. Web Site Content: The Client is solely responsible for all content available on or through the Client's web site(s) and will protect High Secured.Com® against any losses it suffers (including legal fees) as a result of the content of the Client's site(s) or those belonging to its Clients.
7.6. Domain Name: The Client is responsible for ensuring that the use of any domain name selected by it, does not conflict with the rights of any other person. High Secured.Com® cannot guarantee, set aside or in any other way reserve domain names on behalf of the Client. High Secured.Com® will use reasonable commercial efforts to obtain a requested domain name but will not be held responsible for nor be liable to the Client for an inability to secure or otherwise obtain a requested domain name. High Secured.Com® will not be liable to the Client or any other person arising from actual or threatened termination of the right to use a domain name.
7.7. Internet Protocol Address: The Client acknowledges that High Secured.Com® is the owner of the Internet Protocol (IP) static address(s) assigned to a domain name(s) and web site(s) hosted in High Secured.Com® facilities, which High Secured.Com® will supply. High Secured.Com® reserves the right to change the addresses at any time upon 30 days notice to the Client. Upon termination, all IP addresses assigned by High Secured.Com® to the Client, will revert to High Secured.Com®. The Client will have no further right to such address(s). The Client will co-operate with High Secured.Com® in effecting any such change or transfer of IP addresses.
7.8 Compliance with Law: The Client will use the Services only as permitted by applicable laws, regulations, rules, decisions and orders of applicable governmental and regulatory authorities. The Client will comply with the rules and regulations applicable to any network that is accessed through the Services. The Client will not use the Services to carry out any activity or solicit performance of any activity that is prohibited by law or regulation or facilitates or immediately threatens the violation of any law (including intellectual property law or regulation) or violates the Data Service Agreement, or these Terms and Conditions, which is subject to change from time to time, as posted on the High Secured.Com® website. Including but not limited to the foregoing, the Client will not:
(a) knowingly interfere with the lawful use by others of any Service;
(b) modify, reverse engineer or, decompile, disassemble, or create derivative works based on software provided by High Secured.Com® or any High Secured.Com® service provider or supplier unless expressly permitted under the terms of the Software License Agreement in Schedule B or other applicable software license;
(c) use the Services to deliberately release computer viruses or other unauthorized or unwanted computer programs or data onto the Internet;
(d) use the High Secured.Com® name, logo or trademark in any promotional materials, contracts, bills, or similar names or documents, or in association with the Client's products or services without the express written authorization of High Secured.Com®;
(e) in the case of Internet Service, violate generally accepted Internet use guidelines, commonly known as Netiquette, to the extent the principles do not conflict with the provisions of the Data Center Service Agreement;
(f) use the Services to invade the privacy of third parties, impersonate High Secured.Com® personnel or other High Secured.Com® Clients or tend to damage the name or reputation of High Secured.Com®, its affiliates or agents;
(g) engage in any activity in connection with the Services that is abusive, profane, libelous, slanderous, threatening or otherwise harassing, including posting material in any newsgroup that is off-topic according to any public statement of the newsgroup;
(h) solicit High Secured.Com® Clients to patronize competing services;
(i) use the Services to violate or tamper with the security of any computer, equipment or program belonging to High Secured.Com® or any other service provider participating with or connected to High Secured.Com® Services;
(j) engage in Internet Service bulk mailing of advertising or information, spamming, or any other e-mail abuse;
(k) use the Services to engage in the practice of hacking or any other unauthorized attempt to access or otherwise gain entry to the filter systems or network of High Secured.Com®, its Clients, service providers or any other third party;
(l) use any process, program, or tool via the Services for the purposes of guessing, deriving or in any other way attempting to obtain the passwords of High Secured.Com®, its service providers or Clients of High Secured.Com® or any other service provider;
(m) cause or intentionally damage High Secured.Com® systems or other networks through High Secured.Com® system.
7.9. Liability for Improper Use Violation of the terms of Section 7.8 by the Client may result in any of the following:
(i) immediate termination or suspension of Services to the Client by High Secured.Com® without prior notice,
(ii) civil or criminal liability,
(iii) monetary penalties,
(iv) costs incurred to enforce the Client's compliance with section 7.12, and/or
(v) clean-up costs to be charged to the Client by High Secured.Com® at a minimum of $200/hour.
7.11. Indemnification The Client will indemnify and hold High Secured.Com® harmless from and against all loss, liability or damages of any type and expense, including but not limited to reasonable legal fees, arising from any and all claims by any third party, including users and service providers, in connection with the improper use of the Services (and related equipment) by the Client or the Client's failure to comply with its obligations under the Data Center Service Agreement. This indemnity will survive termination of the Data Service Agreement.
7.12. System Requirements: The Client will be responsible for maintaining all its hardware, software and other Client-supplied property in proper working order and at a level sufficient to meet the High Secured.Com® system requirements as notified to the Client by High Secured.Com® from time to time. The Client acknowledges that the High Secured.Com® system requirements will change over time and such changes may require the Client to purchase additional equipment, software or other property or services. All of the Client's equipment entering High Secured.Com® facilities must be inspected and accepted by High Secured.Com® before it may be connected to High Secured.Com® power, IP or telecommunications carriers.
7.13. Equipment: High Secured.Com® is acting only as a reseller or licensor of any hardware, software and equipment (collectively, the Equipment) offered in the Data Service Agreement that was manufactured by a third party. High Secured.Com® shall not be responsible for any changes in Services(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Equipment sold, licensed or provided by High Secured.Com® to the Client or purchased directly by the Client used in connection with the Service(s) will not be deemed a breach of High Secured.Com® obligations under this Agreement. Any rights or remedies the Client may have regarding the ownership, licensing, performance or compliance of Equipment are limited to those rights extended to the Client by the manufacturer of such Equipment. The Client is entitled to use any Equipment supplied by High Secured.Com® only in connection with the permitted use of the Services. The Client shall ensure the protection and keep confidential all intellectual property provided to the Client by High Secured.Com® either directly or on-line (downloaded). The Client either directly or through any Equipment shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. The Client shall not resell, transfer, export or re-export any Equipment, or any technical data derived there from, in violation of any applicable laws of the Republic of Panama or foreign law.
In the event High Secured.Com® provides Equipment to the Client free of charge, upon the termination of this Data Center Service Agreement for any reason, the Client may: (a) purchase the Equipment at the rate of 75% of its original retail value; or (b) return, at the Client's cost, the Equipment to High Secured.Com® in the same condition as furnished to you, excepting normal wear and tear.
If the Client does not purchase or return the Equipment within ten (10) business days of the termination of the Data Center Service Agreement, High Secured.Com® will invoice the Client, and the Client agrees to pay for the Equipment at the rate of 75% of its original retail value.
8.1 For the purpose of restoring the Services, in the event of an interruption, the Client acknowledges that High Secured.Com® may require access, of any type, including but not limited to electronic or physical access, to the Client's equipment. The Client will provide such access immediately upon High Secured.Com® request, at no charge to High Secured.Com®. If the Client fails to do so, the Client will have no remedy or entitlement to credit for any continuing or subsequent failure of High Secured.Com® to meet any service guarantee.
8.2. High Secured.Com® may, upon reasonable notice (based on the totality of the circumstances, but not less than 24 hours), make such inspections, tests, installations, repairs and adjustments as it deems necessary for the operation of High Secured.Com® network, the Client's or High Secured.Com® network equipment or connecting facilities and for verifying the Client's compliance with this Data Center Service Agreement or these terms and conditions. The Client will make available to High Secured.Com®, without charge, such facilities, equipment and records (including providing access, as defined in section 8.1, to the Client's premises and equipment.) as are reasonably necessary in the circumstances.
8.3 Identification Required: Upon request, Client's agents or employees will show valid identification prior to entering the High Secured.Com® premises.
9. ENUREMENT, ASSIGNMENT
9.1.The Data Center Service Agreement is binding upon and will enure to the benefit of the parties and their respective successors, administrators, personal representatives and permitted assigns.
9.2. Neither the Data Center Service Agreement nor any right there under may be assigned, transferred or otherwise disposed of in whole or in part by the Client without the prior written consent of High Secured.Com®, which consent will not be unreasonably withheld. Without restricting the generality of the foregoing, the Client will be deemed to have assigned, transferred or disposed of the Data Center Service Agreement upon a change in the direct or indirect control of the Client, including a sale of all or a substantial part of its assets. In such a case, the Client must notify High Secured.Com® and provide it with the relevant new Client information including, but not limited to, the name and address of the new controlling party.
9.3. High Secured.Com® is entitled at any time without notice to the Client
(a) to assign the Data Center Service Agreement to any of its affiliates or (b) to a third party in connection with the sale of all or substantially all of the assets of High Secured.Com®.
10. CONFIDENTIAL INFORMATION
10.1. The Client warrants that all information transmitted by it to High Secured.Com® is true and correct. The Client warrants that it has been authorized to transmit such information to High Secured.Com® and that High Secured.Com® is authorized to receive and hold such information. High Secured.Com® warrants that the information will only be used for the purposes of providing the Services, managing the Client file and administration of functions such as, but not limited to, credit assessment, billing and collection. Furthermore, the information contained in the High Secured.Com® Client file is restricted to the internal use of High Secured.Com® employees except where expressly noted in the Data Center Service Agreement or as required to ensure the efficient supply of services to the Client, to interact with a service provider interconnecting with High Secured.Com® facilities on behalf of the Client, to support accounts receivable collection agents employed by High Secured.Com® or as required by any legal representative duly authorized to obtain access to any such confidential information.
10.2. High Secured.Com® and the Client may disclose to each other confidential information, including but not limited to, pricing, invoices, billing or marketing materials either directly, by verbal or written communication, or indirectly, by permitting employees of one party to observe various operations or processes conducted by the other. Any information, including invoicing information that reveals or otherwise permits the calculation of High Secured.Com® pricing is confidential. The sharing of confidential information is made on the basis of the confidential relationship established between the parties and each party agrees to take reasonable precautions to protect from disclosure confidential information of the other party which it has received.
10.3. This Section 10 will survive termination of this Agreement.
11. LIMIT ON WARRANTIES AND LIABILITY OF HIGH SECURED.COM®
11.1. It is hereby understood and agreed upon that the amounts payable to High Secured.Com®, under the Data Center Service Agreement are based upon the value of the Services, products and Equipment, as well as the scope of liability set forth in the Data Center Service Agreement and these Terms and Conditions. The services, products and equipment are unrelated to the value of the property or business of the Client or third parties, including but not limited to Clients of the Client.
11.2.Except as specifically provided for in the Data Center Service Agreement, High Secured.Com® makes no express or implied warranty or condition, whether of merchantability, fitness for a particular purpose, or otherwise, with respect to any service, product or equipment provided to the Client by High Secured.Com®. Neither High Secured.Com® nor any of its underlying service providers, information providers, licensors, employees, or agents warrants that all services will be uninterrupted or error free; nor does High Secured.Com® or any of its underlying service providers, information providers, licensors, employees, or agents make any warranty as to the results to be obtained from use of their services, products or equipment. EXCEPT AS SPECIFICALLY PROVIDED IN THE DATA CENTER SERVICE AGREEMENT, ALL SERVICES, PRODUCTS AND EQUIPMENT ARE DISTRIBUTED PURSUANT TO THEDATA CENTER SERVICE AGREEMENT ON AN AS IS, AS AVAILABLE BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHETHER PURSUANT TO STATUTE OR OTHERWISE. THIS CLAUSE MAY ONLY BE AMENDED, CHANGED OR REPLACED BASED ON A SEPARATELY EXECUTED SERVICE LEVEL AGREEMENT. THE SERVICE LEVEL AGREEMENT MUST SPECIFICALLY OUTLINE THE SERVICE(S) REQUIRED OF HIGH SECURED.COM® AND CLIENT'S REQUIRED COMPENSATION, SHOULD HIGH SECURED.COM® FAIL TO MEET IT'S CONTRACTED RESPONSIBILITIES.
11.3. High Secured.Com® IS NOT RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES, INCLUDING THOSE WHOM HIGH SECURED.COM® MAY CONTRACT ON THE CLIENT'S BEHALF OR PROVIDE PORTIONS OF THE SERVICES.
11.4. IF HIGH SECURED.COM® SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO FAILURE OF SERVICES, PRODUCTS OR EQUIPMENT IN ANY RESPECT UNDER ANY LEGAL PRINCIPLE OR DOCTRINE OF ANY KIND, IT WILL NOT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES AND IN ANY EVENT,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE DATA CENTER SERVICE AGREEMENT, ITS
LIABILITY FOR DIRECT AND ANY OTHER DAMAGES WILL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES FOR THE SERVICES, PRODUCTS AND/OR EQUIPMENT IN QUESTION FOR THE BILLING MONTH DURING WHICH THE FAILURE OCCURRED.
FOR AVOIDANCE OF DOUBT, HIGH SECURED.COM® WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF ANTICIPATED OR ACTUAL REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED COST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE DATA CENTER SERVICE AGREEMENT OR THE PROVISION OF SERVICES, EVEN IF HIGH SECURED.COM® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
11.5. The provisions of this section 11 will apply if loss, damage or injury, irrespective of cause or origin, results, directly or indirectly, to person or property from performance or nonperformance of obligations imposed on High Secured.Com®, its employees or agents by the Data Center Service Agreement or from the negligence, active or otherwise, of High Secured.Com®, its agents employees, directors, officer, affiliates and subsidiaries.
11.6. High Secured.Com® will have no liability whatsoever to the Client or any third person arising from the failure, for any reason, to activate any Services on the activation date requested by the Client.
11.7. High Secured.Com® will not be liable for and High Secured.Com® will be indemnified and held harmless by the Client against, all claims, demands, losses or liabilities, including but not limited to, fees and expenses of counsel, arising out of any of the following:
(a) claims for libel, slander, harassment, illegal, improper or unauthorized use of the Services or related facilities by any person, infringement of copyright or unauthorized use of any trade-mark, trade name or service mark, arising from the material, data, information or other transmissions of the Client or those authorized by the Client using High Secured.Com® facilities or Services;
(b) claims for infringement of intellectual property (including patents, trade-marks and copyright) arising from combining or connecting High Secured.Com® Services, equipment or facilities with services, equipment, facilities and systems of the Client or the Client's, employees or agents or those authorized by the Client;
(c) claims by those to whom the Client provides services or from whom the Client may acquire services, equipment or facilities for use in conjunction with the Services;
(d) any and all business practices of the Client or those authorized by the Client; or
(e) damage to business or property or injury to or death of any person, occasioned by or in connection with any act or omission of the Client or of any person utilizing the Client's codes, services, equipment or facilities with or without the consent or knowledge of the Client.
11.8. Without in any way impacting on the construction or interpretation of any other term of the Data Center Service Agreement, the existence of any claim, demand, loss or liability described in section 10.7 will be deemed to be a material violation of the Data Center Service Agreement.
11.9. THE CLIENT ASSUMES TOTAL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICE AND AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS HIGH SECURED.COM® COMMUNICATIONS LTD., ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVANTS, SUBSIDIARIES, AFFILIATES AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE FROM ANY LOSS, DAMAGE, OR COST (INCLUDING LAWYERS FEES)
RESULTING FROM THE VIOLATION OF THESE TERMS AND CONDITIONS.
11.10. Section 10 will apply in the event of a breach of these Terms and Conditions or a breach of the Data Center Service Agreement, by either High Secured.Com® or the Client. Section 10 will survive termination of the Data Center Service Agreement and/or these Terms and Conditions.
12.1. Any notice, request, demand, consent or other communication provided or permitted under the Data Center Service Agreement will be in writing and will be deemed to be sufficiently given if personally delivered, sent by fax, sent by e-mail or sent by Private Courier (DHL, FEDEX, ETC.) to the party for which it is intended at its address set forth in the Data Center Service Agreement. Any notice so given will be deemed to have been received on the date on which it was delivered in person, sent by fax (with transmission confirmation), or sent electronically, or Private Courier (DHL, FEDEX, ETC.)
13.1. These Terms and Conditions and the Data Center Service Agreement with attachments thereto, including the rates, charges or other fees associated with the Services are subject to change from time to time, except as noted in specific Term Contracts, as provided for in writing by High Secured.Com®. Upon notification of any such change, the Client becomes liable for all new rates, charges or fees and is deemed to have accepted all changes, unless the Client terminates the DATA SERVICE AGREEMENT by notice to High Secured.Com® sent within 15 days from the Client's receipt of such notification. If the change in these Terms and Conditions, rates or charges is ordered or necessitated by any regulatory authority, these changes are binding on the parties and do not give rise to the opting out provision of this section. Further, any adverse affect by any regulatory authority on Third Party Providers will not give rise to the opting out provision of this section. If the Client chooses to terminate, the termination Clause of Section 6 will not apply.
14. ENTIRE AGREEMENT
14.1. The Data Center Service Agreement, including these Terms and Conditions and any attachments to the Data Center Service Agreement and these Terms and Conditions, any modifications made by High Secured.Com® as permitted hereunder and any enrolment and other order forms executed by High Secured.Com® and the Client in connection with the Client Agreement constitute the entire agreement between the parties pertaining to the subject matter of the Data Center Service Agreement. There are no warranties, conditions, or representations (including any that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to in the Data Center Service Agreement. No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made either prior to, contemporaneous with, or after entering into the Data Center Service Agreement, or any amendment or supplement thereto, by any party to the Data Center Service Agreement or its directors, officers, employees or agents, to any other party to the Data Center Service Agreement or its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of the Data Center Service Agreement, and none of the parties to the Data Center Service Agreement have been induced to enter into the Data Service Agreement or any amendment or supplement by reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly, there will be no liability, either in tort or in contract, assessed in relation to any such warranty, representation, opinion, advice or assertion of fact, except to the extent contemplated above. ONLY THESE TERMS AND CONDITIONS AND THE DATA CENTER SERVICE AGREEMENT WILL APPLY REGARDLESS OF THE TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER SUBMITTED BY THE CLIENT, AND THE TERMS OF THE CLIENT'S PURCHASE ORDER WILL BE VOID.
15. FORCE MAJEURE
15.1. No party will be liable under the Data Center Service Agreement for failure to carry out its provisions to the extent that such failure is caused by sabotage, vandalism, accidents, fire, flood, acts of God, civil commotion, riots, strikes, lock-outs, insurrections, wars or any other civil or public disturbances, acts or restraints of any governmental authority, civil or military, including the orders and judgments of courts, or priorities granted at the request or for the benefit, directly or indirectly, of any governmental authority or any other cause beyond its control and which was not reasonably foreseeable as at the date of the Data Center Service Agreement (Force Majeure). High Secured.Com® or the Client, as the case may be, will promptly inform the other of the existence of any condition of Force Majeure and will consult together to attempt to find a mutually acceptable solution to any impediments to the fulfillment of their respective obligations under the Data Service Agreement.
15.2. If a condition of Force Majeure prevents a party from carrying out the material provisions of the Data Center Service Agreement and the condition continues for a period longer than 60 days, the other party may terminate the Data Center Service Agreement by written notice specifying the
default and giving a termination date that is no less than 30 days after the date of notice.
16. LANGUAGE OF AGREEMENT
16.1. High Secured.Com® and the Client confirm that they wish to have the Data Service Agreement, these Terms and Conditions and any attachments written in English only.
17. OTHER TERMS
17.1. Time is of the essence of the Data Center Service Agreement. Words used in the singular number only will include the plural and vice versa, and words used in one gender will include the other genders.
18. CHOICE OF LAW AND SEVERABILITY
18.1. These Terms and Conditions and the Data Center Service Agreement shall be construed and enforced in accordance with and governed by the laws of the Republic of Panama. The Client agrees that the jurisdiction for resolution of any dispute arising under these Terms and Conditions shall be the Republic of Panama and the Client hereby consents and submits to the jurisdiction of the courts of the Republic of Panama.
18.2 The Client represents and warrants that it has full power and authority to execute and deliver the Data Center Service Agreement and to perform its obligations there under. If an individual, the Client warrants that he or she (a) is not a minor, and (b) will use the Services in the course of carrying on a business.
18.3. High Secured.Com® decision not to enforce a particular provision of this Agreement at any time does not waive its right to enforce that provision at some other time unless expressly waived in writing by High Secured.Com®
18.4. If any provision of the Data Center Service Agreement or attachments or these Terms and Conditions is determined by a final non-appealable order of a court of competent jurisdiction to be invalid, High Secured.Com® will be entitled, within 60 days after such determination to terminate the Data Center Service Agreement on notice to the Client. If no such notice is given by High Secured.Com®, the invalid provision will be deemed to be void and the remaining provisions of the Data Center Service Agreement will remain in full force.
(1) Credit Card
The Client may select the pre-authorized credit card payment method. The Client may use the following credit cards: VISA, Master Card and American Express. The Client will not dispute with the credit card company any amounts due to it in connection with the Services provided hereunder without first bringing the matter to the attention of High Secured.Com® If the Client's credit card has expired, High Secured.Com® may either request updated credit card information, bill directly with an administration fee of $50.00 to cover a portion of the administrative costs involved or assume that the card has been renewed and adjust all applicable credit card information accordingly. (This payment method is not available for Dedicated Server Hosting services.)
(2) Wire Transfer (SWIFT)
The Client may select the wire transfer payment method. Payments for monthly fees and all other charges will be processed by High Secured.Com® on the first calendar day of the month. Please contact our offices for our SWIFT wire transfer instructions.
SOFTWARE LICENCE AGREEMENT
This is a legal agreement (this Agreement) between the Client (the Client) and High Secured.Com® (High Secured.Com®).
High Secured.Com® hereby grants to the Client a non-exclusive license (the License) to use software provided by High Secured.Com® in connection with the services to be provided to the Client by High Secured.Com® (the Services)
All such software and related documentation (collectively, the Software) is provided to the Client on the following terms:
The Client may:
(a) install and use the Software on any single computer for the purpose of using Services;
(b) install and use the Software on additional computers so long as the first and subsequent computers are not used simultaneously and each is used solely for the purposes of using the Services; or
©Copy the Software solely for archival or back-up purposes, provided any copy must contain all of the original Software's proprietary notices.
The Client may not:
(a) Permit others to use the Software except under the terms listed above;
(b) Modify, translate, reverse engineer, decompile, disassemble, or create derivate works based on the Software;
©Copy the Software (except for back-up purposes);
(d) Rent, lease, transfer or otherwise transfer rights of Software; or ?Remove any proprietary notices or labels on the Software.
The License does not grant to the Client any right to any enhancement or update.
Title, ownership rights, and intellectual property rights in and to the Software will remain in High Secured.Com® and/or its suppliers. The Software is protected by copyright law and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software are the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives the Client no rights to such content.
4. Limited Warranty
High Secured.Com® warrants that for a period of 90 days from the date of acquisition of the License by the Client, the Software, if operated as directed, will substantially achieve the functionality described in the documentation accompanying it. High Secured.Com® does not warrant, however, that the Client's use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and the Client must determine that the Software is free from defects in material and workmanship and will so remain for 90 days from the date the Client acquired the License to the Software. If the Client has paid a specific license fee for the Software, High Secured.Com® sole liability for any breach of this warranty will be in the sole discretion of High Secured.Com®: (1) to replace the defective media; or (2) to advise the Client how to achieve substantially the same functionality with the Software as described in the documentation through a procedure different from that set forth in the documentation; or (3) if the above remedies are impracticable, to refund the license fee the Client paid for the Software. If the Client has not paid a specific license fee, High Secured.Com® may, in its discretion, undertake either or both or remedies (1) or (2) above but otherwise will have no liability to the Client. Replaced Software will be covered by this limited warranty for the period remaining under the warranty that covered the original Software. High Secured.Com® will use reasonable commercial efforts to repair, replace, advise or refund pursuant to the foregoing warranty within 30 days of being so notified. This is a limited warranty and it is the only warranty made by High Secured.Com®. High Secured.Com® makes no other express warranty and no warranty of non-infringement of third parties rights (some provinces and territories do not allow exclusions or limitations of this nature, so this exclusion and limitation may not apply to the Client in whole or in part) and no oral or written information given by High Secured.Com®, its employees or agents will create a warranty. The duration of implied warranties, including, without limitation, warranties of merchantability and of fitness for a particular purpose, is limited to the above limited warranty period; some provinces and/or territories do not allow limitations on how long an implied warranty lasts, so limitations may not apply to the Client in whole or in part. None of High Secured.Com® dealer's agents, or employees is authorized to make any modifications, extensions, or additions to this warranty. If any modifications are made to the Software by the Client during the warranty period; if the media is subjected to accident, abuse, or improper use; or if the Client violates the terms of this Agreement then this warranty will immediately be terminated. This warranty will not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of the hardware and software.
1 Mapp Street
Belize City, Belize