Terms of Service

  1. DEFINITIONS.

“Account Information” means billing information, contact information, payment information and such other information defined as “Account Information” in the Customer Portal.

“Affiliate” means any legal entity that a party controls, that controls a party, or that is under common control with a party. For purposes of this definition, “control” shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.

“Anniversary Billing Date” means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20, 2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be either February 28 or 29, depending on the year).

“AUP” means the Acceptable Use Policy which is located at www.nodespace.net/legal/aup (or such other location as NodeSpace may designate from time to time).

“Customer” means the individual or entity who agrees to the terms of the MSA by clicking or checking the box presented with the MSA, installing and/or using the Services.

“Customer Content” means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.

“Customer End User” means a Third Party which is an end user of a Customer Offering.

“Customer Offering” means services created by Customer based in whole or in part on the Services which are used by Third Parties.

“Customer Portal” means the portal at https://my.nodespace.net (or such other location as NodeSpace may designate from time to time).

“Effective Date” means the date on which the Customer accepts the MSA by clicking or checking the box presented with the MSA, installing and/or using the Services.

“Feedback” means any and all suggestion, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to NodeSpace either directly or indirectly via a NodeSpace-controlled web site.

“Flow-Through Provisions” mean the terms of agreements for services provided by Third Parties which are included in the MSA as required by providers of Third Party Services. The Flow-Through Provisions apply only to the relevant services provided by Third Parties. Such services provided by Third Parties are part of the Services and are subject to the terms of the MSA as well as the Flow-Through Provisions.

“Hourly Services” means the Services that NodeSpace offers on an hourly basis.

“Initial Term” means the period commencing on the Effective Date until the next Anniversary Billing Date, unless terminated as provided in Section 16.

“IP Address Policy” means the policy governing the use and provision of any IP Addresses which is located at www.nodespace.net/legal (or such other location as NodeSpace may designate from time to time).

“MSA” has the meaning set forth in the recitals.

“Order” means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Customer Portal or such other method designated by NodeSpace from time to time. Orders do not apply to Third Party Services.

“PII” means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.

“Privacy Agreement” means the terms governing the use of PII which is located at www.nodespace.net/legal (or such other location as NodeSpace may designate from time to time).

“Private Network” means the term as described in the AUP.

“Public Network” means the term as described in the AUP.

“Renewal Term” means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the next Anniversary Billing Date unless terminated as provided in Section 16.

“Services” has the meaning set forth in the recitals.

“Service Level Agreement” means the Service Level Agreement which is located at www.nodespace.net/legal (or such other location as NodeSpace may designate from time to time).

“Site” means www.nodespace.net (or such other location as NodeSpace may designate from time to time).

“SLA Credits” mean the credits for applicable qualifying service downtown as described in the Service Level Agreement.

“NodeSpace” has the meaning set forth in the recitals.

“Term” means the term as set forth in Section 16.

“Third Party” means an individual or an entity which is not a Customer, NodeSpace, an Affiliate of NodeSpace or an Affiliate of Customer.

“Third Party Services” mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.

“”TOS” means the terms of service for the Services.

“TPS Agreements” mean agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These agreements are separate and independent from the MSA and NodeSpace is not a party to these agreements.

  1. NODESPACE’S OBLIGATIONS.
    • Provision of Services. Contingent on NodeSpace’s acceptance of an Order and subject to the terms of the MSA, NodeSpace agrees to use reasonable commercial efforts to provide the Services subject to the terms of Service Level Agreements. NodeSpace retains the right to reject the request for Services by any individual or entity in its sole discretion. NodeSpace may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and NodeSpace is not responsible for the provision of Third Party Services.
    • Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA.
    • Collection of PII. The collection and use of PII is governed by the Privacy Agreement.
  2. USE OF AND ACCESS TO THE SERVICES.
    • Ordering and Modification of Services. Customer may order Services and all upgrades to such Services through the Customer Portal or as otherwise designated by NodeSpace. NodeSpace may accept such Orders in its discretion and shall give notice to Customer of acceptance of such Order through the Customer Portal. For downgrades or cancellation of Services, NodeSpace requires a written cancellation notice by cancellation ticket in accordance with the procedures in the Customer Portal and through the Customer Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-6) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
    • Rights to Use Services. Subject to the terms and conditions of this MSA (including the Term), NodeSpace grants Customer a non-exclusive, nontransferable, non-sublicenseable (except to the extent required to exercise rights under Section 4.2(b)), revocable right in the Services solely to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide the Customer Offerings.
    • Customer Obligations: Customer agrees to do each of the following: (i) comply with all applicable laws, rules and regulations, including, without limitation, the Foreign Corrupt Practices Act and related international anti-corruption laws and the Digital Millennium Copyright Act and related copyright laws; (ii) pay the fees for the Services when due; (iii) use reasonable security precautions for providing access to the Services by its employees or other individuals to whom it provides access; (iv) cooperate with NodeSpace’s investigation of outages, security problems, and any suspected breach of the MSA; (v) comply with all license terms or terms of use for any software, content, service or website (including Customer Content) which Customer uses or accesses when using the Services; (vi) give NodeSpace true, accurate, current, and complete Account Information; (vii) keep Customer’s Account Information up to date; (viii) be responsible for the use of the Services by Customer and Customer End Users and any other person to whom Customer has given access to the Customer Offering; (ix) comply with the TPS Agreements; (ix) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify NodeSpace of any known or suspected unauthorized use of Customer’s account, the Services or any other breach of security; and (xi) where the Customer provides Customer Offering as permitted under this Agreement, Customer must enter into an agreement with Customer’s End User which shall include the relevant terms of this Agreement and release NodeSpace from any and all liability for damages or losses Customer’s End Users may incur as a result of using the Customer Offering. Customer may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act. Customer may not resell any of the Services alone to any Third Party without first entering into a reseller agreement with NodeSpace.
    • Special Terms for Third Party Services. To the extent Customer orders Third Party Services under TPS Agreements, NodeSpace is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Sections 8, 9, 10, 11, 15 and 16.
    • Fees: All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one time pro-rata charge on the next Anniversary Billing Date. Such fees will be due for the following Renewal Terms until cancelled as provided in Section 4.1.
    • Additional Service Fees/Hourly Service Fees/One Time Fees: For fees for additional services such as CDN overages, bandwidth use overages, backup overages and VMWare use (including archive storage), payment shall be due on the next Anniversary Billing Date. For Orders for Hourly Services, Customer shall specify the period of time for which the Hourly Services are requested in minimum increments of one hour and payment shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by NodeSpace through the Customer Portal.
    • Payment Methods: The payment shall be made by the credit card maintained on file with NodeSpace, automatic file transfer or such other method as approved by NodeSpace. For methods such as credit card, the payment of fees shall be automatic on the due date.
    • Taxes: All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide NodeSpace with an official receipt for any such taxes withheld and must notify NodeSpace prior to payment that withholding tax is required to be paid and Customer shall pay to NodeSpace any additional amount to ensure that NodeSpace receives the full amount of the invoice. If NodeSpace has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides NodeSpace with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
    • SLA Credits: SLA Credits, if issued to Customer’s account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA.
    • Additional Fees. The Customer’s failure to pay any fees on the due date shall result in incurring a late fee of $20. If NodeSpace has suspended the Customer’s access to the Services over the Public Network as provided in Section 15, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and NodeSpace will not reconnect any Services to the Customer until full payment of such fees.
    • Refunds & Disputes: All fees paid for Services to NodeSpace are non-refundable. If the Customer believes that the bills are in error, the Customer’s sole and exclusive remedy is to seek SLA credits through the Customer Portal by opening an accounting ticket to give notice to NodeSpace within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 5.7 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to NodeSpace and any such chargeback will result in an additional payment to NodeSpace of up to $500 which is a reasonable estimate of NodeSpace’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by NodeSpace in enforcing collection of fees.
  3. OWNERSHIP OF SITE: Customer hereby acknowledges and agrees that NodeSpace (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by NodeSpace, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and NodeSpace, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by NodeSpace or its licensors.
  4. SECURITY: NodeSpace agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup (unless Customer has purchased NodeSpace’s data backup services) of the Customer Content. NodeSpace will take commercially reasonable steps to maintain the confidentiality of the Customer Content in performing data backup services. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
  5. INDEMNIFICATION BY CUSTOMER: Customer hereby agrees to indemnify, defend and hold harmless NodeSpace and its parents, Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the “NodeSpace Parties”) (NodeSpace and each of the NodeSpace Parties an “Indemnified Party”), from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim (“Claim”) arising out of: (a) Customer’s use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by NodeSpace prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of NodeSpace or any NodeSpace Party without the prior written consent of NodeSpace and/or the applicable NodeSpace Party(s). Customer and Customer’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the NodeSpace or the NodeSpace Parties in the defense or settlement of any such matter.
  6. DISCLAIMER OF WARRANTIES: EXCEPT AS REQUIRED BY LAW CUSTOMER’S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY NODESPACE “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. NODESPACE; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS’ USE OF THE SERVICES.
  7. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL NODESPACE BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF NODESPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  8. LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW NODESPACE WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, NODESPACE IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, NODESPACE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO NODESPACE’S LIABILITY.
  9. ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH NODESPACE WOULD NOT HAVE ENTERED INTO THIS MSA. NODESPACE’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
  10. ARBITRATION: Any controversy or claim arising from the Services or related to this MSA or breach thereof shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The number of arbitrators shall be one, and such arbitrator shall be an independent third party mutually agreeable to the Parties. The venue and jurisdiction requirements set forth below apply to any arbitration proceedings. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all claims covered by this arbitration provision. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this MSA, to enforce an arbitration award or to obtain temporary injunctive relief pending a judgment based on the arbitration award. Notwithstanding the provisions of this Section 13, Customer acknowledges that Customer’s breach of Sections 4.2, 4.3 or violation of any terms and conditions of the AUP would cause irreparable injury to NodeSpace and agrees that in the event of any such breach, NodeSpace shall be entitled to seek temporary and preliminary injunctive relief, to the extent allowed under the rules of the American Arbitration Association, without the necessity of proving actual damages or posting any bond or other security.
  11. Customer hereby grants to NodeSpace a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer’s trademarks, marks, logos or trade names in connection with NodeSpace’s provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by NodeSpace or its designees. The license granted in this Section 14 will include the right of NodeSpace to sublicense its Affiliates and any Third Parties providing all or part of the Services on behalf of NodeSpace to achieve the foregoing.
    • NodeSpace may suspend provision of Services to Customer without liability if: (i) NodeSpace reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with NodeSpace’s investigation of any suspected violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (iii) NodeSpace reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer’s consent or in violation of the MSA; (iv) NodeSpace reasonably believes that suspension of the Services is necessary to protect NodeSpace’s network or other NodeSpace customers; (v) a payment for the Services is overdue by more than 5 days including the Anniversary Billing Date (and in addition, NodeSpace may, in NodeSpace’s sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 7 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other NodeSpace customer, (vii) NodeSpace reasonably believes that the use of the Services by Customer may subject NodeSpace, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. NodeSpace will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless NodeSpace determines, in NodeSpace’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect NodeSpace or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the MSA for this provision. If NodeSpace suspends the Customer’s right to access or use any portion or all of the Service:
      1. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
      2. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
      3. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension; and
      4. at NodeSpace’s sole discretion, NodeSpace may terminate Customer’s access to Customer Content stored in the Services during a suspension, and NodeSpace shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
    • Except in the case of Hourly Services which are provided based on the number of hours in the Order or as otherwise agreed to by the parties in writing, the term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until terminated as provided below.
    • Termination for Convenience. Customer may terminate the MSA for convenience at any time as provided in Section 4.1 through the Customer Portal. If Customer terminates this MSA for convenience, Customer shall pay NodeSpace all amounts that would be due within 5 days after such termination. NodeSpace may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
    • Termination for Breach. NodeSpace may terminate the MSA immediately upon notice provided through the Customer Portal if: (i) NodeSpace discovers that the information Customer provided to NodeSpace about Customer’s proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 5 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 5 days of NodeSpace’s written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer’s account has been suspended for 30 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 30 days of NodeSpace notice to Customer describing the failure. NodeSpace will give Customer written notice of termination under this paragraph unless NodeSpace determines, in NodeSpace’s reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect NodeSpace or its other customers from operational, security, or other risks. A breach of the FlowThrough Provision shall be deemed to be a breach of the MSA.
    • Access to Customer Content. The deletion of Customer Content is automatic upon termination or expiration of the MSA. Consequently, unless NodeSpace determines otherwise, Customer will not have access to Customer Content, and NodeSpace may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
    • Effect of Termination. Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by NodeSpace and any other materials provided to Customer by NodeSpace in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. NodeSpace will have no obligation to provide any transition services or access to data except as expressly stated in Section 16.4 above.
  1. THIRD PARTIES. Unless otherwise agreed, NodeSpace will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either NodeSpace or Customer under the MSA.
    • Changes to the MSA. As noted in the recitals, NodeSpace may modify the terms and conditions of this MSA as provided below. NodeSpace will notify its Customers through the Customer Portal of any such modifications and all modifications shall be effective upon their posting on the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such modifications on a frequent basis If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by NodeSpace.
    • Certain Employment Issues. If Customer’s employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against NodeSpace under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify NodeSpace from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with NodeSpace’s standard generally-applicable policy.
    • Customer communications regarding the Services should be sent through the Customer Portal except for the following types of notices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:

Xinsto, LLC dba NodeSpace Hosting

C/O Legal Department

3813 Fleetwood Lane

Williamsburg VA 23188

Email: legal@nodespace.net

NodeSpace’s communications regarding the Services and legal notices will be sent through the Customer Portal. Notices are deemed received as of the time delivered. Notices must be given in the English language.

  • Export Matters. If Customer chooses to use these Services, Customer does so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department’s Debarred Parties List. By using these Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer assumes responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations. Customer will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations (“ITAR Data”) or other applicable laws unless NodeSpace has agreed to the transfer and (i) Customer has provided NodeSpace not less than 10 days’ prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer has received prior written authorization from the U.S. Government to transfer the ITAR Data to NodeSpace, and (iii) Customer agrees to provide NodeSpace with all necessary assistance to enable NodeSpace to obtain such U.S. Government permission. Customer is responsible, and will reimburse NodeSpace, for all costs, expenses or damages incurred by NodeSpace in connection with Customer transfer of ITAR Data.
  • Assignment/Subcontractors. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without NodeSpace’s prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. NodeSpace may assign the MSA to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of NodeSpace to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer’s and NodeSpace’s respective permitted successors and permitted assigns. However, NodeSpace may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
  • Force Majeure. Except for its rights in Sections 15 or 16, neither NodeSpace nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the MSA.
  • NodeSpace shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to NodeSpace all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide NodeSpace with any assistance NodeSpace may require to document, perfect, and maintain NodeSpace’s rights in the Feedback.
  • Governing Law, Lawsuits. The MSA is governed by the laws of the Commonwealth of Virginia, exclusive of any Virginia choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state or federal courts in Richmond, Virginia, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
  • Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a Third Party.
  • No Waiver. NodeSpace’s failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. NodeSpace’s waiver of any right under this MSA will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. NodeSpace’s waiver of any right under this MSA must be in writing.
  • All provisions that by their nature are intended to survive expiration or termination of the MSA shall survive expiration or termination of the MSA.
  • This MSA is the complete and exclusive agreement between Customer and NodeSpace regarding its subject matter and supersedes and replaces any agreement (including without limitation any computer infrastructure hosting and related agreements between Customer and The Planet.com Internet Services, Inc.), understanding, or communication, whether written or oral, prior or contemporaneous.
  • If any part of this MSA is found unenforceable by a court or other tribunal, the rest of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this MSA.
  • The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.

Last Update: May 2, 2021