PC Net, Inc. & 85under Universal Terms of Service
PC Net, Inc. and 85under (“PC Net & 85under”) provides access to collocation, shared, virtual server and dedicated server, web, email, and other data and data center related services, as well as various hosted applications. These items are often accessed at a customer location through an Ethernet Wired or Wireless network, and are also often provided through the Internet or another circuit/service provided by a third party. The Internet as well as private circuits that are provided by third parties may involve certain service limitations, or outages, as a result of the third party service or by virtue of being on a public accessed network. This Service Agreement is part of our Universal Terms of Service, which apply to all customers that use our services. These terms are in addition to any and all customer specific contracts, agreements and all attachments, which remain in effect.
Changes to the Hosted Network, Including Private and Shared Resources
PC Net & 85under provide technical services and consulting, hourly, project fixed fee, or through a service agreement, program, or contract. Service offerings may provide for computing and communications services, software, databases, consultation, development and maintenance, and other related activities. PC Net & 85under reserves the right to modify its network and facilities used to provide the services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. PC Net & 85under shall use reasonable efforts to notify the Client of any planned changes to the PC Net & 85under’s network or facilities that may adversely affect the services provided to Client.
PC Net & 85under will strive to provide high quality support services to the Client. PC Net & 85under will respond to email inquiries generally within one business day of receipt. PC Net & 85under will handle more complex inquiries, or urgent situations that can not be handled by e-mail, by phone during normal business hours. Some customer support programs also provide for support access outside normal hours. Support may be reached online at http://support.85under.com, or by phone. Our main number is 417.831.1700 and should be used for support at anytime. Unless provided for with-in a support program, fees for support are charged based on PC Net & 85under Standard Rates. Some services require a minimum fee, specifically those requested or provided after hours.
PC Net & 85under may use the services, software, hardware, or facilities of a third party vendor. In such case the Client hereby waive any and all claims which it may have against PC Net & 85under for any loss, damage, claim or expense arising out of, or in relation to, the services, software, or products of the third party for any reason.
Software as Part of a Hosting Agreement
Software provided as a service may be included within a hosting program. Access to the software is what is provided. There is no transfer of ownership, no rights to the code, and no residual use rights after the expiration of any agreement. Client acknowledges that they will comply fully with terms of any software agreement, including changes to those agreements that are provided or issued by third party software publishers.
At the expiration of any agreement, PC Net & 85under is normally under contractual obligation to remove and terminate any and all access to the software. Client understands that this may involve work to be performed at the Client location and/or other locations. Unless specifically included in an agreement, Client will compensate PC Net & 85under at PC Net & 85under’s standard hourly rates for any removal required.
Service Warranty Disclaimers/Liability Indemnification
PC Net & 85under will utilize its best efforts to maintain acceptable performance of services but makes no warranties whatsoever, expressed or implied, including warranty of merchantability or fitness for a particular purpose. As a result, Client agrees that PC Net & 85under shall not be liable to Client (or any of its Clients or other relationships) for any claims or damages which may be suffered, including but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of PC Net & 85under. Client agrees to indemnify and hold harmless PC Net & 85under from any and all claims, suits or judgments of whatever nature brought against or obtained against PC Net & 85under as a result of services provided. The service is distributed on an “as is” basis without warranties of any kind, either expressed or implied, including but not limited to warranties of title or implied warranties of merchant ability or fitness for a particular purpose or otherwise, other than those warranties which are implied by and incapable of exclusion, restriction, or modification under the laws applicable to the client agreement. The client agrees that it will not hold PC Net & 85under responsible for any selection of or retention of, or the acts or omissions of, third parties in connection with the service.
The Client agrees that the use of the PC Net & 85under’s server(s) is at their own risk, whether the server(s) is reserved for Clients exclusive use, or as part of a shared network. PC Net & 85under does not warrant that its services will not be interrupted or error free. PC Net & 85under is not liable for third party charges that the Client may incur to use the services. Such fees may include toll charges, long distance fees or other taxes or fees assessed by the Government. PC Net & 85under does not make any warranty as to the results that may be obtained from the use of the server services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the PC Net & 85under server, unless otherwise expressly stated in the Client agreement.
Under no circumstances, shall PC Net & 85under be liable for any direct or indirect damages that result from the use of or inability to use the server; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to the PC Net & 85under’s records, programs or services notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of action, including negligence, shall not exceed the prorated dollar amount which the Client paid during the month of service failure, for the particular service that failed.
Client will indemnify, hold harmless, and defend PC Net & 85under and all directors, officers, employees, and agents of PC Net & 85under (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 attorneys’ fees) arising out of or relating to the use of the Services by Client, including any violation of the PC Net & 85under’s Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortuous interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
Survival of Obligations
The restrictions and obligations of this Agreement shall survive any expiration, termination, or cancellation of this Agreement, and shall continue to bind Client, and Client’s successors, personal representatives, heirs and assigns.
Compliance with Laws
The parties agree that they will comply with all applicable laws and regulations of government bodies or agencies in their respective performance of their obligations under this Agreement.
Acceptable Use Policy
PC Net & 85under, which provides Services, offers its Clients and their customers and users, the means to acquire and disseminate a wealth of public, private, commercial, and non-commercial information. PC Net & 85under respects that the Internet provides a forum for free and open discussion and dissemination of information. However, when there are competing interests at issue PC Net & 85under reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, PC Net & 85under has an Acceptable Use Policy, which supplements and explains certain terms of each customer’s respective service agreement and is intended as a guide to the customer’s rights and obligations when utilizing PC Net & 85under’s services. This Acceptable Use Policy will be revised from time to time.
One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet’s openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When subscribers obtain information through the Internet, they must keep in mind that PC Net & 85under cannot monitor, verify, or warrant accuracy and quality of the information that subscribers may acquire. For this reason, the subscriber must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because PC Net & 85under cannot monitor or censor the Internet, and will not attempt to do so, PC Net & 85under cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal Internet communications
When subscribers disseminate information through the Internet, they also must keep in mind that PC Net & 85under does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over PC Net & 85under’s network and may reach a large number of people, including both subscribers and non-subscribers of PC Net & 85under, subscribers’ postings to the Internet may affect other subscribers and may harm the PC Net & 85under’s goodwill, business reputation, and operations. For these reasons, subscribers violate the PC Net & 85under’s policy and the service agreement when they, their customers, affiliates, or subsidiaries engage in the following prohibited activity:
• Intellectual Property Violations
• Obscene Materials or Speech
• Forging of Headers
• Distribution of Internet Malware, Viruses, Worms, Trojan Horses, or Destructive Activities
• Illegal or Unauthorized Access to Other Computers or Networks
• Export Control Violations
• Sending Unsolicited Email
• Other Illegal Activities
• Other Activities Effecting Performance, Reliability, Access, or overall Use by Other Subscribers
• Facilitating a Violation of this Agreement
PC Net & 85under’s policies and procedures for handling client information have been created with the understanding that Internet technologies are still evolving and that Internet business methods are continuing to evolve to meet the needs and opportunities of the changing technologies. As a result, PC Net & 85under’s policies and procedures are subject to change.
In the course of serving its clients, PC Net & 85under acquires stores and transmits client communications and information that clients may regard as private or sensitive. These types of information include but are not limited to the following:
Basic Information: Some of this information such as the client’s name, address, telephone number, and other basic information are provided to PC Net & 85under by its clients in order to establish service.
PC Net & 85under will protect the confidentiality of its clients’ information, account information and personal communications to the fullest extent possible and consistent with the law and the legitimate interests of PC Net & 85under, its partners, its employees and other clients of PC Net & 85under. To protect the loss, misuse, and alteration of information that is collected from clients, PC Net & 85under has appropriate physical, electronic, and managerial procedures in place. However, every Client is at all times ultimately responsible for the backup, retention, and preservation of its intellectual property and electronic information (data).
Clients may access and modify their personal information by contacting PC Net & 85under. PC Net & 85under may publicize, promote, or state to the general public who are Client of PC Net & 85under, unless the client has provided a written letter asking to limit this.
PC Net & 85under will not otherwise disclose its clients’ personal and account information unless PC Net & 85under has reason to believe that disclosing such information is necessary to identify, make contact with, or bring legal action against someone who may be causing harm or interfering with the rights or property of PC Net & 85under, PC Net & 85under clients, or others, or where PC Net & 85under has a good faith belief that the law requires such disclosure.
PC Net & 85under will not, except for reasons stated below, disclose to third parties the contents of any electronic mail or other electronic communications that PC Net & 85under stores or transmits for its clients. The circumstances under which PC Net & 85under will disclose such electronic client communications are when:
1. It is necessary in order to provide service to the client;
2. It is necessary to protect the legitimate interests of PC Net & 85under and its clients;
3. It is required to cooperate with interception orders, warrants, or other legal process that PC Net & 85under determines in its sole discretion to be valid and enforceable; and
4. It is necessary to provide to a law enforcement agency when the contents are inadvertently obtained by PC Net & 85under and appear to pertain to the commission of a crime
PC Net & 85under disclaims any intention to censor, edit or engage in ongoing review or surveillance of communications stored on or transmitted through its facilities by clients or others. PC Net & 85under will, however, review, delete or block access to communications that may harm PC Net & 85under, its clients or third parties. The grounds on which PC Net & 85under may take such action include, but are not limited to, actual or potential violations of PC Net & 85under’s Universal Terms of Services policies.