Terms and Conditions
The terms and conditions set forth herein constitute the full and complete agreement between you and Bry.Net Web Services ("BNWS"). By using the BNWS Web Site, Hosting Services, any Support Services, any BNWS software (the BNWS Software), or any other products or services of BNWS (together the "BNWS Services"), you agree to be bound by the terms of this Agreement. The terms contained herein supercede and replace any other agreement or negotiation between you and BNWS, whether oral, written or otherwise, including any statements made to you by any representative of BNWS at any time. Any amendments, changes, additions, deletions or other modifications of this Agreement are void unless specifically expressed in writing and agreed to by BNWS.
1. FEES; PAYMENT OF FEES
1.1. Fees
1.1.1.
BNWS charges Account Set-Up Fees, Service Fees and Domain Service Fees where applicable. All such fees are subject to change with 30 days notice. A list of current fees is available on the BNWS website. Unless otherwise specified in any offer or promotion, the fees published on the BNWS website are applicable to all transaction between you and BNWS. The contract between you and BNWS is effective from the earlier of (1) the activation of your account or (2) your receipt of an email from BNWS confirming your order.
1.1.2.
BNWS reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party. BNWS reserves the right to change the rate charged for any such fee under this agreement with 30 days notice. Promotional offers and rates may not be combined.
1.1.3.
To the extent that you qualify for any promotional rates or special offers offered by BNWS, these terms and conditions may be modified by the terms and conditions of the promotion or special offer. In such a case, the terms and conditions of the promotion, to the extent they differ from the terms and conditions expressed herein, govern.
1.1.4.
BNWS charges a non-refundable set up fee as well as its periodic service fee which in some cases may be refundable as further set forth elsewhere herein. Depending on the services you order from BNWS, BNWS may also charge you for Domain Service Fees and specifically reserves the right to institute additional charges upon notice to you. BNWS reserves the right to alter, change, amend or delete charges at its sole discretion. BNWS further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.2. PAYMENT OF FEES
1.2.1.
Payment of fees must be made by Paypal or Check. Payment for all products and services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the BNWS Services. All payments shall be made in United States Dollars.
1.3.
Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this agreement under Section 8.1. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date. BNWS may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. There will be no refunds of Domain Service Fees.
2. WEB HOSTING SERVICES
2.1.
For the term of the agreement as set forth herein, BNWS agrees to provide the BNWS Services, to the extent they have been subscribed to by you, upon activation of your account. BNWS reserves the right to change, amend and/or otherwise alter the BNWS Services with equivalent or otherwise equal services without prior notice to you.
2.2.
Account activation and provision of the BNWS Services will commence as soon as is practicable after receipt of your order, dependent on the timely receipt of any payment due from you in connection therewith.
2.3.
Subscribers to BNWS Services must be at least 18 years of age or require the approval of the minor's legal guardian.
3. DOMAIN NAMES AND REGISTRATION SERVICES
3.1.
At your request, BNWS may acquire a Second-Level Domain Name ("Domain Name"), on your behalf and in your name, assuming that the Domain Name you request is available for registration. BNWS will not own or otherwise legally control any Domain Name registered on your behalf under this Section. BNWS provides this service as a convenience to you only and you hereby waive any and all claims which you may have, or which may later arise, against BNWS for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. Any costs incurred by BNWS to obtain and/or maintain the Domain Name on your behalf shall be charged to you by BNWS under the provision therefore elsewhere herein.
3.2.
Domain Names may be registered by BNWS on your behalf through a variety of Domain Name Registration Services (each a "Registrar" or a "Registry"). Each Registrar/Registry has its own terms and conditions concerning the registration and maintenance of domain names and you agree to be bound thereby. In particular, registration of Domain Names binds you to the terms of the Uniform Domain Name Dispute Resolution Policy ("UDRP"), which governs the resolution of most disputes regarding the registration of Domain Names.
3.3
Domain Names registered with a Registrar other than BNWS may be transferred to your BNWS account upon request. You will be required to pay for an initial year of registration fees upon transfer, even for Domain Names that have been prepaid for a period of more than one year ("Prepaid Domain Names"). Prepaid Domain Names may be transferred provided there are nine years or fewer remaining in the Domain Name registration. Upon transfer and subject to payment of such fees an additional year will be added on to your existing registration period, if any. For subsequent years, an annual maintenance fee is assessed on all transferred Domain Names, including Prepaid Domain Names. By requesting the transfer of any Domain Name you authorize BNWS to charge your account for all such fees and charges.
3.4.
You warrant to BNWS that any Domain Name you may seek to register through BNWS does not violate the rights of any third party, in particular trademark rights, and that you have taken reasonable steps, including but not limited to searches of the applicable state and federal trademark registries, to assure that this is the case. You agree to indemnify and hold harmless BNWS, its officers, directors, employees and agents, with respect to any and all damages, losses, claims or expenses incurred with respect to or arising out of claims of third parties concerning your use of any such Domain Name on the Internet.
3.5.
You agree to inform BNWS of any proceeding instituted by any party challenging your rights to use any Domain Name hosted on BNWS servers, including but not limited to disputes under the Uniform Domain Name Dispute Resolution Policy ("UDRP"). Should you for any reason lose your right to use a Domain Name hosted on the BNWS Servers, through expiration of the registration of the Domain Name, judicial decree, and administrative decision under the UDRP or otherwise, you agree to immediately inform BNWS of such loss of rights. To the extent your loss of rights to a Domain Name is accompanied by any judicial decree or administrative decision granting rights to the Domain Name to a third party, you agree to immediately inform BNWS in writing of the identity of the party to whom such rights are to be transferred, as well as of any other information regarding the nature and scope of the decision of the judicial body or administrative panel that rendered the decision.
3.6.
You agree and understand that BNWS may, should your rights to a Domain Name be challenged in any way, suspend the BNWS Services associated with such Domain Name and take any other steps required under any such proceeding, including but not limited to actions required under the UDRP. In any such case, BNWS will take every reasonable step to assure that no loss of data occurs as a result of such actions and BNWS may make such data available to you for storage elsewhere.
4. ACCEPTABLE USE
4.1.
BNWS strictly enforces compliance with its acceptable use terms under this Article 4. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under Article 8 herein. You agree that:
4.1.1.
you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
4.1.2.
you will not engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;
4.1.3.
you will not take any action which encourages or consists of any threat of harm of any kind to any person or property;
4.1.4.
you will not transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be "spamming" or "Mail Bombing," and you will not carry out any "denial of service" attacks on any other website or internet service;
4.1.5.
you agree not to make any inappropriate, illegal or otherwise prohibited communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum;
4.1.6.
you agree not to make or attempt any unauthorized access to any BNWS website or the website of any BNWS customer;
4.1.7.
you agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
4.1.8.
you agree not to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
4.1.9.
you agree not to collect, attempt to collect, publicize, or otherwise disclose personally identifiable information of any person or entity without their express consent (which may be through the person or entity's registration and/or subscription to your web site or email list, in which case you must post a privacy policy which discloses any and all uses of information that you collect) or as otherwise required by law, and you shall maintain records of any such consent throughout the terms of this agreement and for three years thereafter;
4.1.10.
you agree not to undertake any action which is harmful or potentially harmful to the BNWS server structure.
4.2.
In order to maintain the data-transfer volume restrictions set forth in Section 11.1 below, you agree to check all of your email accounts in regular intervals and to download the email stored therein. BNWS may, should the capacity of your email boxes be exceeded at any time, return all subsequently received emails to the senders without notice to you. Email accounts that have not been used for a period exceeding two (2) months (i.e., the account has not been accessed by you and email has not been downloaded for a period of two month) are subject to suspension by BNWS. Upon such suspension, BNWS will send a notification to your primary contact email address, announcing the suspension of the account. Failure to respond to such notice with a request for reinstatement of the account may, at BNWS's sole discretion, lead to the termination of the subject account and the email box may be deleted from BNWS's servers. In such cases, BNWS takes no responsibility for the loss of any data and/or emails still located in such account and you have no recourse against BNWS for any damages resulting from the loss of such data.
4.3.
Use of your IMAP account as a "virtual drive", i.e., to store files as attachments or in any other manner, is strictly prohibited. IMAP accounts may be used for no purpose other that in the context of normal email traffic.
4.4.
You agree to design your websites in such a manner as to avoid overloading of the BNWS Servers, by limiting the use of CGI-Scripts that require overly high processor capacity, and to use good judgment to provide a website that is designed in a technically competent manner. BNWS has the right, should your website be the cause of interruptions in BNWS's ability to provide its services to other customers, to temporarily disable access to your website. In case BNWS takes such a step, you will be informed thereof as soon as is practicable and BNWS may work with you to remove the condition that led to the suspension.
4.5.
You agree not to operate any chat rooms via the BNWS Services, unless permission for the operation of a chat room was specifically included in the service package ordered and paid for by you.
5. BLOCKING OF BULK EMAIL ("SPAM")
5.1.
BNWS reserves the right to block email from any open mail relay, IP address or other source that BNWS believes are being used to send unsolicited commercial or bulk email, commonly known as SPAM.
6. LICENSE
6.1.
Pursuant to the terms and conditions set forth herein, BNWS grants you a non-exclusive, limited, personal, non-transferable license to use the BNWS Software pursuant to the Software License Agreement delivered along with the Software to you. By installing and utilizing the BNWS Software, you are deemed to have agreed to the terms of said Software License Agreement.
6.2.
For purposes of this Agreement, the term BNWS Software includes the original program, all copies thereof and all parts of the program, even when the parts are combined with other programs of other manufacturers. A program consists of machine readable instructions, audio-visual components and all manuals and other instructions or materials delivered therewith.
6.3.
You agree to assure that all users of the BNWS Software are aware of and comply with the terms of the license granted hereby. You may use the BNWS Software on a single computer or workstation. Use of the BNWS Software exists when the BNWS Software is loaded into the memory of any computer or workstation or stored on the hard drive or other storage medium of any computer or server. Installation of the BNWS Software on a Network Server solely to facilitate distribution to other computers attached to the network is not use. However, each installation from such network server is subject to the license restrictions contained herein. Multiple installations, unless specifically permitted under the license granted to you, are not permitted.
6.4.
The BNWS Software is generally provided free of additional charges. Nevertheless, to the extent that license fees are charged in extraordinary circumstances, the amount of the license fee charged by BNWS is dependent on the number of licensed users agreed to between you and BNWS. If use of the BNWS Software is governed by license administration software, an unlimited number of copies may be installed and stored on any number of computers or servers which are under the control of the license administration program, provided, however, that the number of copies, computers servers and users may not exceed the agreed upon maximum number permitted. Programs which are designed to be used both on stationary and portable computers may be stored on both a primary and secondary computer but may not be used simultaneously on both computers.
6.5.
The BNWS Software is provided to you in object code form. You are permitted to make one (1) security copy of the BNWS Software, as long as said copy retains all of BNWS's copyright and trademark notices.
6.6.
You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the BNWS Software or any copies thereof and not to assist any third party in doing so.
6.7.
To the extent the license granted to use any BNWS Software, the BNWS Services and any accompanying materials is limited by time, or upon the cancellation or termination of the BNWS Services, you will, upon the end of the license period or cancellation or termination, remove, destroy, erase and otherwise obliterate all copies of the BNWS Software from all computers on which it may have been installed and to permanently destroy all security copies you may have made pursuant to the forgoing Section. To the extent required by any additional license terms, you will return to BNWS all written documentation and advertising or promotional materials provided to you by BNWS.
7. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
7.1.
It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of BNWS including but not limited to the BNWS customer service and maintenance tools. You acknowledge that all right and title to any such BNWS intellectual property shall remain the sole property of BNWS and that you have no right, title or interest therein. You further agree not to provide access to the BNWS services to any third party. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the BNWS Services shall also remain the sole property or BNWS.
7.2.
During the term of this agreement you may have access to certain information and materials relating to the BNWS business, customers, software technology and marketing which BNWS treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of BNWS; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
7.3.
For purposes of this Article 7, Confidential Information also includes passwords and access codes.
8. TERM
8.1.
The initial term of this Agreement shall be one (1) month with automatic renewal for subsequent additional month after the expiration of the initial term (each such month a "Contract Term"). BNWS reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month.
9. TERMINATION
9.1.
BNWS may terminate this agreement for any reason with or without cause upon thirty (30) days notice.
9.2.
For any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) and Section 4 (Acceptable Use Policy), BNWS may suspend or terminate your account by deactivating any access by you or by web users to any information contained on the BNWS servers related to your account. Suspension hereunder shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. BNWS reserves the right to terminate your account forthwith and without notice for any breach of Article 4 of this Agreement.
9.3.
This agreement and all of its terms shall remain in full force and effect until terminated. Termination shall include the removal of any and all of your information from the BNWS servers, including but not limited to e-mails, web pages, CGI scripts, log files, and databases or data files ( Customer Data ). To the extent not already deleted, such information or data may be made available to you by BNWS after any such termination at BNWS's sole discretion. BNWS takes no responsibility for the loss of any Customer Data still located in such account and you have no recourse against BNWS for any damages resulting from the loss of such Customer Data. This agreement may be terminated either (a) after a period of suspension as set forth in Section 8.1 or (b) at any time by either party upon 30 days notice. Individual Domain Names can be terminated at the end of each renewal period applying to such Domain Name. Domain Name registrations can be terminated earlier, provided however, that no refund of domain service fees is possible.
9.4.
Either party may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination under this subsection 9.3 exists (a) if any payment for BNWS Services is more than fifteen (15) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of Article 4 of this Agreement.
9.5.
In the event of any termination under this Article 9, any service fees paid in advance beyond the next renewal date following the notice period under that section will be refunded to you. This refund shall not include any set-up fees, Domain Service fees, fees for the 24-Month Server Packages, or other fees which are all non-refundable.
9.6.
Accounts that are thirty (30) days past due shall be automatically suspended and all past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, Customers are liable for costs of collection including but not limited to attorney's fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a debt collection fee of $18.95, which fee shall be paid by Customer prior to reactivation of the account.
9.7.
Notices under this Section 9 shall be given by BNWS to you per the provisions of Section 10 below. Notwithstanding anything to the contrary contained herein, notices of termination given by you under this Section 9 shall be deemed effective only if given by you in writing, either by telefax or by mail.
10. NOTICE
10.1.
Any notice under this Agreement shall be given by BNWS to you via email at the address provided by you to BNWS at the commencement of this Agreement or as BNWS is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email.
10.2.
You warrant that the contact information you have provided to BNWS is and will remain accurate. You agree that you will inform BNWS within 15 days of the change of any of the following information:
10.2.1.
your name and/or mailing address;
10.2.2.
the name, mailing address, email address, telephone or telefax number of the technical contact for your Domain Name(s), if applicable;
10.2.3.
the name, mailing address, email address, telephone or telefax number of the administrative contact for your Domain Name(s), if applicable;
10.2.4.
in case you have installed and are operating your own name servers, any change in the primary or secondary DNS address of such servers, including the server names. In addition, in case domain names registered with other registrars point to any website hosted by BNWS, you will notify BNWS within fifteen (15) days of any change in the DNS information pertaining to such domain names.
11. WARRANTEES; LIMITATIONS OF LIABILITY
11.1.
BNWS makes every reasonable effort to maintain operation of the BNWS Services. However because many events and circumstances are beyond the control of BNWS, BNWS does not in any way warrant or otherwise guarantee the availability of the BNWS system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of BNWS. BNWS may, at its sole discretion, limit or deny access to its servers, if, in the judgment of BNWS, such limitations or denials of access are required to the assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the BNWS servers.
11.2.
ALL BNWS SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on BNWS's website, BNWS has no control over information contained on the Internet. BNWS, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. BNWS provides no warrantee for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the BNWS system.
11.4.
You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
11.5.
THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO BNWS IN THE SIX MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY, BUT IN NO EVENT TO EXCEED $1,000. IN NO EVENT SHALL BNWS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
12. DATA TRANSFER VOLUME
12.1.
Unless BNWS agrees otherwise in writing, a data-transfer volume of 6 Gigabytes per month is included in the BNWS Services. The utilized data-transfer volume is calculated on the basis of all data-transfers that take place during any given calendar month (including but not limited to downloads, email, uploads and website visits). You are responsible for monitoring your monthly data transfer volume, and you authorize BNWS to charge your account for any excess usage at the rates set forth in its current fees. For purposes of this Agreement, 1 Gigabyte equals 1000 Megabytes, 1 Megabyte equals 1000 Kilobytes and 1 Kilobyte equals 1000 Bytes. In addition the combined mailbox quota space per account may not exceed 25 GB.
13. INDEMNITY
13.1.
You agree to fully defend and indemnify and hold harmless BNWS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of BNWS in any way related to your use of the BNWS Services or any portion thereof.
13.2.
You agree to fully defend and indemnify and hold harmless BNWS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the BNWS Services or any portion thereof. Choice of counsel remains exclusively that of BNWS.
13.3.
You agree that upon the assignment of your Customer ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your customer ID and / or your password You further agree to defend and indemnify and hold harmless BNWS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential Customer ID and Password information. Choice of counsel remains exclusively that of BNWS.
14. GENERAL PROVISIONS
14.1. FORCE MAJEURE / WITHDRAWAL FROM BUSINESS
14.1.1.
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
14.1.2.
In addition to any event of force majeure as described in the foregoing paragraph, BNWS may also terminate this Agreement in the event that BNWS elects, at its sole discretion, to cease doing business in the United States for economic reasons or for any other reason whatsoever. Customers who, at the time BNWS ceases doing business in the United States, are taking advantage of any BNWS offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the "Extended Services"), may not recover any damages from BNWS (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Extended Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any BNWS offer of Extended Services. Customers receiving Extended Services at the time of cessation of business shall be entitled to a reimbursement of their pre-paid service fees, if any, except for Domain Services Fees, which are in always non-refundable as provided for elsewhere herein.
14.2.
ASSIGNMENT. This agreement and the rights hereunder is not assignable or transferable except that BNWS may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of BNWS, or to any affiliated company or successor in interest of BNWS. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by BNWS to any other party, including to any affiliated company or successor in interest of BNWS, you have the right to terminate this Agreement by giving notice thereof in writing to BNWS and any such termination shall become effective thirty (30) days after the receipt of such notice by BNWS.
14.3.
SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
14.4.
CHOICE OF LAW. This Agreement shall be interpreted under the laws of the State of New York, without regard to any conflict of laws provisions.
14.5. DISPUTE RESOLUTION
14.5.1.
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Rochester, County of Monroe, Commonwealth of New York, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice ("Demand for Arbitration") to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the City of Rochester, County of Monroe, Commonwealth of New York. All costs of any such arbitration shall be borne equally by the parties. The provisions of this paragraph shall survive the expiration or earlier termination of this Agreement.
14.5.2.
This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
14.6.
NO AGENCY. Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between BNWS and you.
14.7.
AMENDMENT. BNWS may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the BNWS website in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the BNWS website for updates of this Agreement.
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