This User Agreement ("Agreement") is an agreement between Knight-Tro Soft, a Sioux Falls, SD Company, and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Order Form. Such party is referred to in this Agreement as "Customer" or "you". PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING Knight-Tro Soft'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. Knight-Tro Soft reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Knight-Tro Soft. Activation of the Services shall indicate Knight-Tro Soft's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Knight-Tro Soft will provide to Customer the Services selected by Customer set forth on the Order Form.
1. Usage Policy.
Under this Agreement, Customer shall comply with Knight-Tro Soft's then current Usage Policy, as amended, modified or updated from time to time by Knight-Tro Soft, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the Usage Policy and that the terms of the Usage Policy are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern. Knight-Tro Soft does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, Knight-Tro Soft may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the Usage Policy. In the event Knight-Tro Soft takes corrective action due to a violation of the Usage Policy, Knight-Tro Soft shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Knight-Tro Soft shall have no liability to Customer or any of Customer's customers due to any corrective action that Knight-Tro Soft may take (including, without limitation, disconnection of Services).
Knight-Tro Soft may amend, modify or update this Agreement or the Usage Policy at any time in its sole discretion, and Customer shall be bound by any such amendment, modification or update. Knight-Tro Soft may, but is under no obligation to, provide notice of any amendment, modification or update of this Agreement or the Usage Policy. Any modification is effective on the earlier of two days after posting on Knight-Tro Soft's website or two days after the sending of a notice by Knight-Tro Soft to Customer by e-mail or conventional mail. If any material modification to this Agreement or the Usage Policy is unacceptable to you, you may terminate your subscription as provided in Section 3. However, if you do not terminate the Agreement, or if you continue to use the Services following effectiveness of the modification, your continued use will mean that you have accepted that modification. Knight-Tro Soft reserves the right to amend its service offerings and add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
3. Term; Termination; Cancellation Policy.
The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated (i) by either party by giving the other party 30 days prior written notice (subject to an early cancellation fee as provided below), (ii) by Knight-Tro Soft in the event of nonpayment by Customer, (iii) by Knight-Tro Soft, at any time, without notice, if, in Knight-Tro Soft's judgment, Customer is in violation of any term or condition of the Usage Policy or Customer's use of the Service disrupts or, in Knight-Tro Soft's judgment, could disrupt, Knight-Tro Soft's business operations and (iv) by Knight-Tro Soft in accordance with Sections 1, 9, and 10 of this Agreement.
If you cancel this Agreement prior to the end of the Term, (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (ii) Knight-Tro Soft shall refund to you all pre-paid fees for basic hosting services (shared, dedicated and/or managed) for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment, (iii) you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term (other than basic hosting fees as provided in (ii) above) and (iii) Knight-Tro Soft shall have the right to charge you an early cancellation fee of $25.00. Any cancellation request shall be effective 30 days after receipt by Knight-Tro Soft, unless a later date is specified in such request.
If Knight-Tro Soft cancels this Agreement prior to the end of the Term, Knight-Tro Soft shall not refund to you any fees paid in advance of such cancellation and (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (ii) you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and (iii) Knight-Tro Soft shall have the right to charge you an early cancellation fee of $25.00.
4. Billing and Payment.
All fees for the Services shall be in accordance with Knight-Tro Soft's fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. A $5.00 late fee will apply to accounts past due more than ten (10) calendar days from the due date. Knight-Tro Soft may, with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the Services. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Knight-Tro Soft may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due Knight-Tro Soft remains unpaid fifteen (15) days after such payment is due, Knight-Tro Soft, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. There will be a $25.00 charge to reinstate accounts that have been suspended or terminated. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Knight-Tro Soft) shall be paid by Customer.
Customer agrees that Knight-Tro Soft may pre-charge Customer's fees for the Services to the credit card supplied by Customer during registration.
Returned checks will be assessed a $30.00 charge. Wire transfers will be assessed a $30.00 charge.
5. Special Provisions Applicable to Resellers.
Knight-Tro Soft from time to time may offer reseller programs which will permit Customers to resell certain of Knight-Tro Soft's products and services, and be eligible for certain discounts, services and other promotions. A Customer that participates in a reseller program is referred to herein as a "Reseller". To be eligible to participate in a reseller program, the Reseller may be required to meet certain requirements as provided in such reseller program. If you are a Reseller, the terms and conditions in this section (in addition to any terms or conditions contained in the reseller program) are applicable to you.
As a Reseller, you are Knight-Tro Soft's Customer. A Reseller shall be deemed, and is the "Customer" for all purposes under this Agreement and the Usage Policy. When you resell the Services, the purchaser of those resold services becomes your customer (a "Reseller Customer"). A Reseller Customer is not a Customer of Knight-Tro Soft, and Knight-Tro Soft will not support any Reseller Customer. Reseller shall take all necessary measures to preclude Knight-Tro Soft from being made a party to any agreement with any Reseller Customer. As a Reseller, you are authorized to resell the Services identified in the applicable reseller program on a non-exclusive basis. Knight-Tro Soft reserves the right to market and sell its products and services through its own employees, other resellers and other representatives and retailers that may compete with you. The terms and conditions of such other relationships may differ from the terms of this Agreement and the reseller program, and may be better. Reseller shall be responsible for billing, and collecting payments from, Reseller Customers. Reseller shall not withhold payments to Knight-Tro Soft under this Agreement because of a failure of a Reseller Customer to make payments to Reseller. Reseller may set the prices to be paid to it by Reseller Customers for any of the resold Services. Reseller shall provide all support (including, without limitation, customer support, first level support, second level support, and other technical support) for Reseller Customers. Reseller shall pay all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, state or local, however designated, which are levied or imposed on Knight-Tro Soft and Reseller under this Agreement and any and all transactions between Reseller and Reseller Customers. Reseller shall not resell the Services under Knight-Tro Soft's brand name. Reseller shall be solely responsible for compliance with any regulations governing the export of the Services (or any portion thereof). Nothing in this Agreement constitutes a license to Reseller to use or resell the Marks (as defined below).
6. Knight-Tro Soft as Reseller or Licensor.
Knight-Tro Soft is acting only as a reseller or licensor of the software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-Knight-Tro Soft Product"). Knight-Tro Soft shall not be responsible for any changes in the Services that cause the Non-Knight-Tro Soft Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-Knight-Tro Soft Product either sold, licensed or provided by Knight-Tro Soft to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Knight-Tro Soft's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Knight-Tro Soft Product are limited to those rights extended to Customer by the manufacturer of such Non-Knight-Tro Soft Product. Customer is entitled to use any Non-Knight-Tro Soft Product supplied by Knight-Tro Soft only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Knight-Tro Soft to Customer through any Non-Knight-Tro Soft Product and 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. Customer shall not resell, transfer, export or re-export any Non-Knight-Tro Soft Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
7. IP Address Ownership.
If Knight-Tro Soft assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to Knight-Tro Soft, and Customer shall have no right to use that Internet Protocol address except as permitted by Knight-Tro Soft in its sole discretion in connection with the Services, during the term of this Agreement. Knight-Tro Soft shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Knight-Tro Soft, and Knight-Tro Soft reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Customer expressly (i) grants to Knight-Tro Soft a license to cache the entirety of the Customer Content and Customer's web site, including content supplied by third parties, hosted by Knight-Tro Soft under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
9. CPU Usage.
Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Knight-Tro Soft's servers. Any violation of this policy may result in corrective action by Knight-Tro Soft, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Knight-Tro Soft's sole and absolute discretion. If Knight-Tro Soft takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
10. Bandwidth and Disk Usage.
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). Knight-Tro Soft will monitor Customer's bandwidth and disk usage. Knight-Tro Soft shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Knight-Tro Soft's sole and absolute discretion. If Knight-Tro Soft takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
11. Property Rights.
Knight-Tro Soft owns all right, title and interest in and to the Services and Knight-Tro Soft's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Noting in this Agreement constitutes a license to Customer to use or resell the Marks.
12. Customer Web Site; E-Commerce; Customer Warranties.
Customer shall be solely responsible for the development, operation and maintenance of Customer's web site, online store and e-commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation (i) the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products, (ii) ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and (iii) ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
Customer shall be responsible for the security and confidentiality of any customer information (including, without limitation, customer credit card numbers) that Customer may receive as a result of its web site or online store.
Customer represents and warrants to Knight-Tro Soft that Customer owns or has the right to use the Customer Content and material contained therein, including all text, graphics, sound, music, video, programming, scripts and applets, and the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not, (i) infringe or misappropriate any copyright, patent, trademark, trade secret or any other proprietary right of a third party, (ii) violate any criminal laws or (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation. Customer grants Knight-Tro Soft the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
13. Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through or from Knight-Tro Soft, at Customer's own risk. Customer acknowledges and agrees that Knight-Tro Soft exercises no control over, and accepts no responsibility for, the content of the information passing through Knight-Tro Soft's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF Knight-Tro Soft, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "Knight-Tro Soft PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT Knight-Tro Soft PROVIDES. NO Knight-Tro Soft PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. Knight-Tro Soft IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY Knight-Tro Soft. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY Knight-Tro Soft PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Customer agrees to indemnify, defend and hold harmless Knight-Tro Soft and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Services, (ii) any violation by Customer of the Usage Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
15. Limitation of Liability.
Customer agrees that no Knight-Tro Soft Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Knight-Tro Soft at the time) which may exist in the Services or Knight-Tro Soft's equipment used to provide the Services.
Under no circumstances, including negligence, shall any Knight-Tro Soft Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Knight-Tro Soft has been advised of the possibility of such damages. No Knight-Tro Soft Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Knight-Tro Soft's records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Knight-Tro Soft's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
Customer understands, acknowledges and agrees that if Knight-Tro Soft takes any corrective action under this Agreement because of an action of Customer or one if its customer or a Reseller Customer, that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Knight-Tro Soft shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Knight-Tro Soft.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
16. Force Majeure.
Knight-Tro Soft shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
17. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by South Dakota law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in South Dakota. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Sioux Falls, South Dakota, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement.
Customer shall not have the right to assign this Agreement without the prior written consent of Knight-Tro Soft. This Agreement shall be binding upon and inure to the benefit of Customer and Knight-Tro Soft and their successors and permitted assigns.
19. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.