IBCnet Hosting Services Terms and Conditions
Where the context admits: "We" includes "IBCnet" or any party acting on IBCnet implicit instructions. "You" includes the person purchasing the services or any party acting on the customer's instructions. "The Registrant" includes the person applying for a domain name or any party acting on the Registrant's instructions. "The Registry" the relevant domain names Registry. "Server" means the computer server equipment operated by us in connection with the provision of the Services. "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet. "Network" means the computer equipment owned and operated by us. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
1. Domain Name Registration
1.1. IBCnet makes no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk.
1.2. The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them.
1.3. You shall have no right to bring any claim against us in respect of any refusal to register a domain name by the relevant registration authority.
1.4. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the Registry to register your desired name.
1.5. We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant Registry but will not be obliged to take part in any such dispute.
1.6. We shall not release any domain to another provider unless full payment for that domain has been received by us.
1.7. If the domain name registration was made under a "free domain registration" offer, registration fees may be applied if: -
1.7.1. You want to transfer the domain name away from IBCnet.
1.7.2. You want to use the domain name with the services of another provider.
1.7.3. If you are no longer subscribed to the services that were taken out as part of the "free domain registration" offer.
1.8. The renewal of domain names registrations MUST be explicitly made before expiration date of the domain name's registration period. After expiration domain names can NOT be renewed. IBCnet can not be held liable if you fail to renew the registration in accordance to this condition.
1.9. IBCnet can not be held liable for any loses incurred as a result of failure to renew the registration of a domain name, either by yourself, or on the part of IBCnet.
1.10. REGISTRATION FEES FOR DOMAIN NAMES IS NON-REFUNDABLE, ONCE THE DOMAIN NAME REGISTRATION HAS BEEN SUBMITTED TO THE RELEVANT REGISTRATION AUTHORITY.
2. Web Site Hosting, Databases, Storage Service and Email
2.1. IBCnet provides World Wide Web page and ASP/ASP.NET Web Application hosting service. IBCnet reserves the right to suspend or cancel a customer's access to any or all services provided by IBCnet when IBCnet decides that the account has been inappropriately used or otherwise.
2.2. IBCnet makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Servers and we shall have no liability for any loss or damage to any data stored on our Servers.
2.3. You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
2.4. You represent, undertake and warrant to IBCnet that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that: -
2.4.1. You will not use the Servers in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorize or permit any other person to do so.
2.4.2. You will not upload, post, link to or transmit: -
2.4.2.1. Any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way.
2.4.2.2. Any material containing a virus or other hostile computer program.
2.4.2.3. Any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
2.4.2.4. Any file that you do not own the copyright to in the first person, including but not limited to; music files, mp3's, video files, movies, games (including modifications, patches, and add-ons), software, and shareware.
2.4.2.5. Illegal Material - This includes copyrighted works, commercial audio, video, or music files, and any material in violation of any Federal, State or Local regulation.
2.4.2.6. Adult Material - Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of IBCnet.
2.4.2.7. Warez - Includes pirated software, ROMS, emulators, phreaking, hacking, password cracking. IP spoofing, etc., and encrypting of any of the above. Also includes any sites which provide 'links to' or 'how to' information about such material.
2.4.2.8. Any material which is forbidden by our Acceptable Usage Policy:
IBCnet Hosting Services Acceptable Use Policy
This policy is subject to change, so please check regularly for updates.
2.4.2.8.1. IBCnet reserves the right to suspend or cancel a customer's access to any or all services provided by IBCnet, where IBCnet decides that the account has been inappropriately used. IBCnet reserves the right to refuse service and/or access to its network to anyone.
2.4.2.8.2. IBCnet offer large amounts and unlimited disk space and bandwidth with some account types. By this, we mean unlimited disk space for legitimate web site content and bandwidth for visitors to view it. All files on a domain must be part of the active website and linked to the site. Web sites should not contain any backups, or other non-web based content. We will treat all password protected archives (e.g. zip and rar) files as unacceptable. Non web files including, but not limited to exe, mp3, avi, wmf are not permitted on our servers. Storage of non website files is only permitted on our file server as part of our Storage Service.
2.4.2.8.3. Scripts and web applications on the web site must be designed to produce web-based content, and not to use the server as an application server. Using the server to generate large volumes of email from a database is an example of activity that is not allowed. Scripts and web applications should not attempt to manipulate the timeouts on servers. These are set at the present values to ensure the reliability of the server. Sites that reset these do so because they are resource intensive, and adversely affect server performance and are therefore not allowed. Scripts and web applications that are designed to provide proxy services, anonymous or otherwise, are not allowed.
2.4.2.8.4. IBCnet is a Windows Web Hosting Company. As such, we support native Windows web technologies including ASP and ASP.NET. The PHP scripting language, native to Unix systems, is supported on our servers but with limited functionality. We do not host web sites which are predominately PHP or utilize large PHP Scripts (this includes, but is not limited to PHP based Forums, Content Management Systems, Portals). If your website is predominantly PHP then you should look for a Unix based web hosting company to host your web site.
2.4.2.8.5. The IBCnet FTP servers may not be used by persons outside of the account holders organization to transfer files to our servers. The use of web cam applications which maintain a constant FTP connection uploading an image at regular intervals is forbidden.
2.4.2.8.6. IBCnet will disable any web site and domain that fails to adhere to the following criteria as soon as we are made aware, in line with current working practices: -
2.4.2.8.6.1. The primary purpose of any web site must be to provide web-based content to viewers. Files on the site must be linked to the web site.
2.4.2.8.6.2. The primary purpose of any script or web application must be to produce a web page. Scripts and web applications that send a single email based upon user entered information, or update a database are acceptable. Scripts and web applications that send bulk email or perform processor intensive database processes are not allowed. All outgoing mail is monitored and filtered and must be sent using authentication from a IBCnet hosted mailbox.
2.4.2.8.6.3. Database services are for the exclusive use of storing the data of web sites hosted on our network and can not be used to store non web site data.
2.4.2.8.6.4. Web sites must not contain Warez, copyright or other illegal material. The onus is on you the customer to prove that you own the rights to publish material, not for IBCnet to prove that you do not.
2.4.2.8.6.5. Web sites must not contain pornographic or other lewd material. Adult Material includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of IBCnet.
2.4.2.8.6.6. Web sites must not use excessive amounts of server resources. These include bandwidth, processor utilization and / or disk space. Please see the 'High Resource Use Policy'.
2.4.2.8.6.7. Web sites must not contain scripts and web applications that attempt to access privileged server resources, or other sites on the same server.
2.4.2.8.6.8. FTP servers are for the exclusive use of our customers and may not be used for anonymous or pubic FTP access.
2.4.2.8.7. If you require the storage of non website files then this is ONLY permitted using our Storage Service. Files stored in the Storage Service must be legal under US law. If you are found to have illegal files stored on our systems then your account will be suspended and all files removed without warning. The designation of "illegal files" is left entirely to the discretion of IBCnet.
2.5. You will not employ programs which consume excessive system resources, including but not limited to processor cycles and memory.
2.6. Any file you store on the Servers will be reachable via a hyperlink from a page on your site.
2.7. You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft or unauthorized disclosure of your password or other security information.
2.8. You shall observe the procedures which we may from time to time prescribe and shall make no use of the Servers which is detrimental to our other customers.
2.9. You shall procure that all email is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
2.10. You shall ensure that all web applications and scripts that you run on our servers that send email are adequately protected from malicious abuse, both from website visitors, remote submission, and automated spam programs.
2.11. Community Hosting Packages are for the exclusive hosting of IBCnet Forums ONLY. You will not host other files, web pages, applications, programs, or scripts on the Community Hosting Packages.
2.12. In the case of an individual User, you warrant that you are at least 18 years of age and if the User is a company, you warrant that the Services will not be used by anyone under the age of 18 years.
2.13. Any access to other networks connected to IBCnet and our agents must comply with the rules appropriate for those other networks.
2.14. While we will use every reasonable endeavor to ensure the integrity and security of the Servers, we do not guarantee that the Servers will be free from unauthorized users or hackers and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email.
2.15. IBCnet reserves the right to delete any file on our network where we believe that said file or files are not permitted under these Terms and Conditions.
2.16. Although we do make regular daily backups of all our servers, we do not guarantee the integrity of our backups or that we will be able to recover all or any files, databases, and email. We strongly recommend that you have an independent backup of all data stored on our network in the event we are unable to recover your data after a data loss.
3. Email
3.1. You will not use our network to send or transmit, or use the services of another company, for email forbidden in these Terms and Conditions, or under our acceptable use policy, anti-spam policy. YOU WILL BE A CHARGED A 'CLEAN UP' FEE OF $1,500 PLUS AN ADDITIONAL $200 PER HOUR ADMINISTRATIVE CHARGES FOR ACCOUNTS TERMINATED OR SUSPENDED UNDER THE ANTI-SPAM POLICY.
IBCnet Hosting Services Anti-SPAM Policy
This policy is subject to change, so please check regularly for updates.
3.1.1. You will not send SPAM, or any unsolicited commercial email from our network, or promote a website hosted on our network using SPAM. IBCnet reserves the right to determine what constitutes SPAM and terminate all services, without prior notice, of any customer disregarding this policy. YOU WILL BE CHARGED A 'CLEAN UP' FEE OF $500 PLUS AN ADDITIONAL $200 PER HOUR ADMINISTRATIVE CHARGES FOR ACCOUNTS TERMINATED OR SUSPENDED DUE TO SPAM.
3.1.2. Web Hosting customers are permitted to send confirmed 'opt-in' bulk-email to Mailing Lists of up to 500 recipients per hour and a maximum of 3000 recipients per day. If you exceed this limit or if such email is reported as SPAM then clause 1 of this policy will be applied. IF YOUR ACTIONS CAUSE OUR MAIL SERVERS OR ANY OF OUR IP ADDRESSES TO BE BLACKLISTED (THIS INCLUDES BUT IS NOT LIMITED TO ANTI-SPAM ORGANISATIONS, MAIL FILTERING SYSTEMS, RBL LISTS, INTERNET SERVICE PROVIDERS) YOU WILL BE CHARGED $500 PLUS AN ADDITIONAL $200 PER HOUR ADMINISTRATIVE CHARGES INCURRED TO REMOVE AND PROTECT MAIL SERVERS AND IP RANGES.
3.1.3. You will represent, undertake and warrant to IBCnet that any bulk-email, sent either using the services provided by IBCnet or to promote a website or domain held on the IBCnet Network, will comply with the terms below. Any bulk-email that does not comply with these terms will be treated as SPAM and clause 1 of this policy will apply: -
3.1.3.1. Every email must clearly state who the sender is and give clear and precise instructions on how to be removed from receiving any further communications of the same or similar nature. The removal instructions shall be easy to understand and must aid and not hinder the subscriber.
3.1.3.2. You shall ensure that before the sending of any bulk-email you have received back a 'Subscription Confirmation Request' from each recipient's email address that proves that the recipient did in fact 'opt-in' to receiving communications of this kind. If you do not have such proof then it will be treated as SPAM and clause 1 of this policy will be applied.
3.1.3.3. You shall ensure the 'Subscription Confirmation Request' sent to the recipient to confirm 'opt in' of bulk-email shall not be an advertisement for products or services.
3.1.3.4. Every email must comply fully with US Laws.
3.1.4. To prevent the sending of bulk unsolicited email and to prevent the IP addresses of IBCnet being blocked by IP address blocking, then clause 1 of this policy will be applied, in the following scenarios: -
3.1.4.1. Where IBCnet has received any complaints concerning unsolicited email originating from a IBCnet hosted domain.
3.1.4.2. Where IBCnet have received any complaints concerning unsolicited email being sent to promote web sites and domains that are hosted on the IBCnet network. This also includes domains which use the IBCnet domain forwarding service.
3.1.4.3. Where bulk-email is sent to a 'dirty list' of unconfirmed 'opt-in' email addresses.
3.1.4.4. Where bulk-email is sent to email addresses harvested from the Internet.
3.1.4.5. Where bulk-email is sent to email addresses obtained from another party, even if the other party claim the list is 'opt-in'.
3.1.4.6. Where you have not put in place adequate protection to prevent web applications and scripts from sending unsolicited spam email for your web site.
3.1.5. Nothing in this policy is intended to grant any right to transmit or send email to, or through, the Services provided by IBCnet. Failure to enforce this policy in every instance does not amount to a waiver of IBCnet's rights.
3.1.6. Unauthorized use of the Services in connection with the transmission of unsolicited email, including the transmission of email in violation of this policy, may result in civil, criminal, or administrative penalties against the sender and those assisting the sender.
3.2. You will keep mailbox password confidential, and to change passwords on a regular basis. IBCnet is not responsible for any data losses or security issues due to stolen passwords.
3.3. We monitor the servers as a whole but not individual mailboxes.
3.4. We run anti-SPAM software on our email servers. You can determine the levels of SPAM protection, and actions to be taken when SPAM is detected from within the webmail account for the mailbox.
3.5. By default all mailboxes have graylisting enabled to prevent SPAM. This can be disabled from within the webmail account for the mailbox.
3.6. We run anti-SPAM software on outbound email from all mailboxes. IBCnet reserves the right to mark or delete any messages determined to be SPAM.
3.7. We run anti-virus software on all email which passes through our mail servers. IBCnet reserves the right to delete any email which is flagged by the anti-viruses software as being infected or containing one of more virus signatures.
3.8. You will scan your incoming email to and from your systems for viruses. We do scan your email for viruses, but we cannot guarantee that your email will be virus free and shall not be held liable in the event any of your systems become infected with a virus as a result of using our services.
3.9. IBCnet policy on maintaining stable data-transfer levels includes a deletion process for email that has not been downloaded locally within 180 days of receipt, 30 days for items placed in the webmail deleted and junk mail folders. IBCnet cannot be held responsible for lost items that have exceeded these limits.
3.10. If we identify a mailbox or domain that is causing problems, we will either remove the offending mailboxes or change their settings to resolve the issue. In extreme cases, we will disable email or suspend all services to the domain as appropriate. Common issues that cause problems are: -
3.10.1. Where a mailbox receives large volumes of undeliverable email.
3.10.2. Where mailboxes have forwarders set to other mailboxes where mail cannot be delivered.
3.10.3. Where mailboxes have forwarders and/or auto-responders that generate circular mail loops.
3.11. You represent, undertake and warrant to IBCnet that you will use the email services for lawful purposes. In particular, you represent, warrant and undertake to us that: -
3.11.1. You shall not send messages or communications, which are unsolicited, offensive, abusive, indecent or obscene.
3.11.2. You shall not send messages causing annoyance, inconvenience or anxiety to another user of the Internet.
3.11.3. You shall not send messages for the purpose of Fraud and /or with the intention of committing a criminal offence.
3.12. IBCnet reserves the right to terminate or suspend services and accounts where: -
3.12.1. A significant volume of email is sent from a domain in a defined timescale.
3.12.2. Use of the IBCnet email services is forbidden by our Anti-SPAM Policy.
4. Resellers
4.1. All accounts other than our Reseller account are to be used by the primary owner only, and do not allow the holders to resell, store or give away web-hosting services of their website to other parties.
4.2. If you are or become a reseller of our Services you will continue to be bound by these terms and conditions, you will be responsible for ensuring that your customers are bound by terms and conditions that adequately reflect and give effect to these.
4.3. You shall not incur or purport to incur on our behalf any liability nor in any way pledge or purport to pledge our credit or to make any contract binding on us.
4.4. No default by your customers shall in any way affect, modify or limit your obligations under this Agreement.
4.5. We authorize you to sell our services under your own brand for the direct use of your clients only. You may not permit your clients to resell the services you provide.
5. Storage Service
5.1. IBCnet Host provide a Storage Service that allows customers to store non-website files on our file storage servers. Use of this service is at your own risk and IBCnet can not be held liable for the loss, or disclosure to unauthorized users, of any data stored on our servers.
5.2. IBCnet reserves the right to delete any file stored using our Storage Service where we believe that said file or files are not permitted under these Terms and Conditions and suspend or terminate the account holders services.
5.3. The use of the Storage Service is for the exclusive use of our Hosting Accounts Holders only. Anonymous or public access to our Storage Service is not permitted.
6. High Resource User Policy
6.1. Resources are defined as bandwidth, processor utilization or disk space. IBCnet may implement the following policy to its sole discretion: -
6.1.1. When the resources utilized by a customer in using a service are abnormally high, IBCnet reserves the right to suspend that service immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. Customers may be offered an option whereby IBCnet continues hosting the web site for an additional fee. Extra bandwidth is charged at $10 per 1,000MB per month payable in advanced. IBCnet reserves the right to determine what constitutes to 'abnormally high'. Failure to comply with such measures may result in your service being terminated.
7. IBCnet Forums License Grant
7.1. IBCnet Hosting Customers receive an installed Premium Edition of IBCnet Forums for the term of their Hosting Package with IBCnet to be used on IBCnet systems in conjunction with a good financial standing, active Hosting Package, and not transfer, whether whole or in part, to any other system not owned by IBCnet. The entitlement to IBCnet Forums Premium Edition will end at the termination of your Hosting Package either by yourself or by IBCnet.
8. Service Availability
8.1. IBCnet shall use reasonable endeavors to make available to you at all times the Servers and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Services.
8.2. IBCnet shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is to last for more than 7 days you will be notified of the reason.
8.3. IBCnet hosting services are subjected to the Data Center Hosting Provider in which it hosts its servers. IBCnet terms and conditions are subject to terms and conditions of the Data Center Hosting Provider. You agree to all the terms and conditions by the Data Center Hosting Provider. The Data Center Hosting Provider terms and conditions are published herein, or on their website, or as updated by them from time to time.
9. Payment
9.1. All charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us on our web site and shall be due and payable in advance of provision of the Services.
9.2. IBCnet reserves the right to change pricing at any time although all pricing is guaranteed for the period of pre payment.
9.3. Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given in writing.
9.4. All payments must be in US Dollars, paid online using the online payment provided by IBCnet
9.5. Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you.
9.6. If an account goes unpaid for at least seven days, a $10.00 late payment fee will be applied and the account and all its associated services are suspended.
9.7. Once an account has a suspended status, access to files, databases, emails, and other content is explicitly denied. All files, databases, emails, and other content including the account itself is permanently deleted after ten days of account suspension.
9.8. If you wish to reactivate an account which has been deleted then a $20.00 charge will be applied upon account reactivation to cover administration costs.
9.9. Should access to files, databases and other content be required before they are deleted, account reactivation will be required.
10. Termination and Refunds
10.1. IBCnet shall be entitled to suspend the Services and/or terminate this Agreement forthwith without notice to you if you: -
10.1.1. Fail to pay any sums due to us as they fall due.
10.1.2. Break any of these Terms and Conditions, including accompanying Acceptable Use Policy and Anti-SPAM Policy.
10.1.3. Are a company and you go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with your creditors.
10.1.4. Refunds will be given at the discretion of the management, admin fees may be deducted.
10.1.5. IBCnet reserves the right to suspend the Services and/or terminate this Agreement at any time. In the event of this you will be entitled to a pro rata refund based upon the remaining period of prepayment, unless your account was suspended due to a breach of the terms and conditions.
10.1.6. You may cancel the Services at any time. To do so you must request cancellation of the Services in writing including your account username and password. We will cancel the Services within 5 working days of receipt of your request.
10.1.7. During the first 30 days of Services, You are entitled to a refund of the basic hosting package rental fee, but not including admin fees, should You decide to cancel the Service. No full refunds will be made if your account was suspended due to a breach of the Terms and Conditions or after the first 30 days of service should You decide to cancel the Services.
10.1.8. Where payment has been made by credit or debit card, any refund will only be issued to the same credit or debit card.
10.1.9. On termination of this Agreement or Suspension of the Services we shall be entitled immediately to stop access to your Web Site and to remove all data located on the Servers.
11. Cancellation of Contract
11.1. If you are a 'consumer', you may have a right to cancel this contract under the Consumer Protection (Distance Selling) Regulations 2000 or similar laws amending or replacing it. The right must be claimed in writing within seven working days of the start of the services with IBCnet.
11.2. Upon cancellation, access to services supplied by IBCnet will be removed, and any account or services will be terminated and files or content, including web files and email will be deleted. Once this is complete any monies paid to IBCnet will be return to the consumer within 30 days.
12. Indemnity
12.1. You shall indemnify IBCnet and it's agents and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to You and your use of the Services and the Servers including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.
13. LIMITATION OF LIABILITY
13.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IBCnet OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF INTERUPTION IN SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, ‘IBCnet’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID FOR THE SERVICES (IF ANY) WHICH ARE THE SUBJECT OF ANY SUCH CLAIM, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ‘IBCnet’ TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. IBCnet IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY ‘IBCnet’ OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
13.2. IF YOU ARE A CONSUMER, THESE CONDITIONS DO NOT AFFECT YOUR STATUTORY RIGHTS UNDER APPLICABLE CONSUMER LAWS. YOU MAY ASSERT SUCH RIGHTS AT YOUR DISCRETION.
14. Notices
14.1. Any notice to be given by either party to the other may be sent by either email, or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
15. Severability
15.1. In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either you or us from any relevant competent authority, we shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or, at our discretion, such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
16. Applicable Law and Dispute
16.1. This Agreement and all matters arising from it are governed by and construed in accordance with the laws of the state of California whose courts shall have exclusive jurisdiction over all disputes arising in connection with this Agreement and the place of performance of this Agreement is agreed by you to be in the state of California.
17. Headings
17.1. Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
18. Entire Agreement
18.1. These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
18.2. Failure to enforce these Terms and Conditions and related Polices in every instance does not amount to a waiver of IBCnet's rights.
IBCnet RESERVES THE RIGHT TO CHANGE THESE TERMS AND CONDTIONS AT ANY TIME.
Changes to the Terms and Conditions will be announced on the Terms & Conditions section of the web site. Failure to receive notification of a change does not make those changes invalid. Current copies of the Terms and Conditions will be available on this page.
By accepting these Terms and Conditions and Acceptable Use Policy and Anti-SPAM Policy you have agreed to be bound by the Terms and Conditions of the Agreement and by that any subsequent agreement or policy, and that there no circumstances where deviation from the agreed Terms and Conditions is permissible. Please beware that failure to carryout your obligations under the agreement could be seen as a breach of contract leading to termination services provided by IBCnet.
GIGABIT DATA CENTER SERVICES AGREEMENT
IBCnet is an Alchemy Communications, Inc. (“Alchemy”) Gigabit Data Center ("GDC") customer (“Customer”). As such, You agree to be bound by the terms of the GDC Services Agreement (“Agreement”) as set forth below. Please read this document thoroughly as acceptance of hosting services provides acknowledgement of this Agreement.
1. GENERAL TERMS
A. This document shall comprise a complete and binding agreement between Customer and Alchemy. Each GDCSO, and any amendments thereto, when dated and subscribed by Customer and Alchemy, shall incorporate the terms and conditions of this Agreement. In the event of any conflict or inconsistency between this Agreement and the terms set forth in a GDCSO agreement(s), the terms of the GDCSO agreement(s) shall in all cases prevail.
B. In connection with the Space made available hereunder, Alchemy shall perform, or outsource, services which support the overall operation of the Gigabit Data Center ("GDC"), e.g., janitorial services, environmental systems maintenance, and power plant maintenance, at no additional charge to Customer. However, Customer shall be required to maintain the Collocation Space in an orderly manner and shall be responsible for the removal of trash, packing, cartons, etc. from the Space. Further, Customer shall maintain the Space in a safe condition, including but not limited to the preclusion of storing combustible materials in the Space. Violations of the above may result in warnings and or the removal of such material by Alchemy at Customer’s expense.
C. Any option granted to Customer to renew its license to occupy the Space shall be contingent on the election by Alchemy to continue to own or lease the Premises in which the Space is located for the duration of the Renewal Period(s), such election to be exercised at the sole discretion of Alchemy.
2. GDC SERVICES
A. Collocation Space: If contracted for, Alchemy shall provide Customer with shared or private data center space (“Space”) as indicated in the GDCSO(s). Space offered in this Agreement (including the any addendums and any GDCSO(s)) is a service and does not constitute a lease, sublease or easement of real property. Customer acknowledges and agrees that it has been granted only a limited and non-exclusive license to use the Space and the Data Center in accordance with this Agreement.
B. Connectivity: If contracted for, Alchemy shall provide Customer with connectivity to the Internet through Alchemy's network as specified in the GDCSO(s). Connectivity is measured and billed using a 95/5 Rule. The aggregate of both inbound and outbound bandwidth is sampled at five-minute intervals throughout the month. Once all samples have been accumulated, the top 5% of the collected samples are discarded, the highest remaining sample, rounded to the next full mega bit per second (Mbps) times the negotiated rate, will be billed. Alchemy shall provide cross-connectivity, where applicable, for an additional fee.
C. Technical Support: If contracted for, Alchemy shall provide Customer with complete technical support upon Customer's request and in accordance with Alchemy's terms and conditions and listed rates.
D. Eyes Hands Support: If contracted for, Alchemy shall provide Customer with assistance to observe conditions in their Collocation Space and offer light hands assistance such as shutting off and turning on equipment as directed by Customer.
3. TERM OF AGREEMENT
A. Customer's license to occupy the Collocation Space shall begin on the "Start Date," as set forth in the GDCSO agreement(s) or on the date Alchemy completes the build-out of the Space, whichever is later. The term of the Customer's license to occupy the Space shall be indicated on the GDCSO(s).
B. Should Alchemy fail, for any reason to tender possession of the Space to Customer on or before the Requested Service Date (specified in the GDCSO agreement(s) relevant thereto) this Agreement shall not be void or voidable. If Alchemy fails to tender possession of the Space to Customer within a sixty (60) day period after such Requested Service Date (due to any reason other than the acts or omissions of Customer), Customer may, upon written notice to Alchemy, declare the relevant GDCSO agreement(s) null and void with no further obligation attributed to Customer, and Alchemy shall refund all fees and charges paid in advance by Customer, except in the case where the delay was caused by Customer, in which case, Alchemy shall retain any funds necessary to recover the cost or obligations incurred on behalf of Customer. Except as provided herein, Alchemy shall not be liable to Customer in any way as a result of a delay or failure to tender possession.
C. Following the expiration of the Term, as set forth in the GDCSO agreement(s) noted “End Date,” for each Space and/or Service or failure of the Parties to enter into any Renewal Periods, Customer's license to occupy the Space and receive services shall continue in effect on a month-to-month basis upon the same terms and conditions specified herein, unless terminated by either Customer or Alchemy upon thirty (30) days prior written notice.
4. TERMINATION
A. Either party shall have the right to terminate this agreement should the other party breach a material term or condition of this Agreement and fail to cure such breach within thirty (30) days after receipt of written notice of the breach, except in the case of failure to make timely payment to Alchemy, which must be cured within ten (10) days of the payment due date. Alchemy has the option, at its sole discretion, to terminate this Agreement should Customer become insolvent or the subject of bankruptcy proceedings, a receivership, liquidation or a sale for the benefit of creditors.
B. Upon termination or expiration of the Term for each Space, Customer agrees to do the following: (i) immediately pay all outstanding amounts owed to Alchemy in full; followed by (ii) remove the Equipment and other property that has been installed by Customer or Customer's agent(s) and return the Space to Alchemy in substantially the same condition as it was on the date of installation; (iii) return any confidential information it has received from Alchemy and (iv) return any equipment or supplies that are the property of Alchemy. In the event such Equipment or property has not been removed within thirty (30) days of the effective termination or expiration date, the Equipment shall be deemed abandoned and Customer shall lose all rights and title thereto.
C. In the event the GDC becomes the subject of a taking by eminent domain by any authority having such power, Alchemy shall have the right to terminate this Agreement. Alchemy shall attempt to give Customer reasonable advance notice of the removal schedule. Customer shall have no claim against Alchemy for any relocation expenses, any part of any award that may be made for such taking or the value of any unexpired term or renewed periods that result from a termination by Alchemy under this provision, or any loss of business from full or partial interruption or interference due to any termination. However, nothing contained in this Agreement shall prohibit Customer from seeking any relief or remedy against the condemning authority in the event of an eminent domain proceeding or condemnation that affects the Space.
5. DEFAULT
A. If Customer fails to perform its obligations, or fails to pay for services rendered hereunder, Alchemy may, at its sole option and with written notice, issue a default notice letter to Customer, demanding the default condition be cured. If the default condition is not remedied within the time period specified in the notice letter, Alchemy may then, without the necessity of any further notice, discontinue performance and terminate this Agreement, for default, and pursue any other remedies available at law or in equity, including reimbursement of the cost of collection and reasonable attorney fees. Alchemy's failure to exercise any of its rights hereunder shall not constitute or be construed by Customer as being a waiver of any past, present, or future right or remedy. In the case of Customer's failure to make timely payments, Alchemy may discontinue any or all services for any period of time as it deems appropriate without written notice to Customer, and such action shall not be deemed a breach of this Agreement by Alchemy.
B. At any time during the term of this Agreement, Alchemy may, at it's sole option, immediately terminate this Agreement if Customer is not then maintaining the Equipment solely for the purpose of originating and/or terminating telecommunications transmissions carried over the Alchemy Network or as otherwise set forth in this Agreement, or pursuant to the terms and conditions, if any, contained in any GDCSO identified herewith.
C. If Customer commits an act of default under any GDCSO to which this Agreement pertains, Alchemy may, in its sole discretion, declare Customer to be in default of any and all other GDCSOs then in effect, without the necessity of showing separate failures, acts or omissions by Customer.
D. If Customer commits an act of default with respect to the purchase of telecommunications services that would entitle Alchemy under its separate tariffs and agreements to terminate its services to Customer, then Alchemy and all Alchemy's Affiliates shall be entitled to terminate this Agreement and all GDC services to which this Agreement pertains.
E. Alchemy may, without notice, suspend or terminate services to customer if Customer is found to be engaged in unlawful activities or upon the request to do so by any legal or governmental agencies.
F. At the termination of this agreement for any reason or if Customer has failed to make timely payments of amounts owed, Alchemy at its sole discretion may refuse to allow the removal of some or all of Customer equipment from Alchemy’s facilities until all outstanding amounts owed to Alchemy are paid in full. In order to satisfy outstanding balances owed, Customer specifically herein consent and agree that Alchemy may take possession and ownership of all or part of Customer equipment, if Customer fails to bring all payments up to date within thirty (30) days of receiving written notice from Alchemy of its intent to take possession of said equipment. If the value of the equipment in which Alchemy has taken possession and ownership of has a resale value that is less than the amount owed, Alchemy is entitled to take whatever legal actions are necessary to collect the difference.
6. PRICES AND PAYMENT TERMS
A. Customer shall pay Alchemy monthly recurring fees (the "Recurring Fees"), which shall include charges for use and occupancy of the Space (the "Occupancy Fees"), connectivity (or cross-connect fees, if applicable), power charges, streaming charges and, where applicable, technical support and system administration. In addition to any Recurring Fees, Customer shall be charged nonrecurring fees for build-out of the Space (the "Build-Out Charges"), where applicable, Escort charges, and other services, which shall be set forth in the GDCSO agreement(s). If Customer requests that Alchemy provide services not delineated herein or in the GDCSO agreement(s) at any time during the Term, Customer agrees to pay the fee for such services in effect at the time such service was rendered. All payments will be made in U.S. dollars. Late payments hereunder will accrue interest at a rate of one and one-half percent (1 ½%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its judgment Alchemy determines that Customer is not creditworthy or is otherwise not financially secure, Alchemy may, upon written notice to Customer, modify the payment terms to require assurances to secure Customer's payment obligations hereunder.
B. All payments required by this Agreement are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which Customer will be responsible for and will pay in full. Customer agrees to pay or reimburse Alchemy for any applicable taxes that are levied based on the transactions hereunder, exclusive of taxes on income of the GDC. Any such charges shall be invoiced and payable within the payment terms of this Agreement. Alchemy agrees to provide Customer with reasonable documentation to support invoiced amounts applied to taxes within thirty (30) calendar days of receipt of a Customer's written request.
C. Power charges may be increased to reflect utility related cost increases incurred relevant to the Space. Customer shall pay to Alchemy its pro rata share of any such increases based on the number and type of power circuits Customer has. Alchemy shall notify Customer of any such increase as soon as practicable.
D. Charges delineated in the GDCSO for build-out of the Space shall be invoiced and paid by Customer when invoiced. Alchemy may require payment of the "Build Out Fees" prior to commencing construction.
E. Customer agrees to reimburse Alchemy for all reasonable repair or restoration costs associated with damage or destruction caused by Customer's personnel, Customer's agent(s) or Customer's suppliers/contractors or Customer's visitors during the Term or as a consequence of Customer's removal of the Equipment or property installed in the Space.
7. ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE AND INSTALLATION OF EQUIPMENT
A. Before beginning any delivery, installation, replacement or removal work, Customer must obtain Alchemy's written approval of Customer's choice of suppliers and contractors which approval shall not be unreasonably withheld or delayed. Alchemy may request additional information before granting approval and may require scheduling changes and substitution of suppliers and contractors as conditions of its approval. Approval by Alchemy is not an endorsement of Customer's supplier or contractor, and Customer will remain solely responsible for the selection of the supplier or contractor and all payments to Alchemy for construction work performed on their behalf.
B. Customer shall not make any construction changes or material alterations to the interior or exterior portions of the Space, including any cabling or power supplies for the Equipment, without obtaining Alchemy's written approval for Customer to have the work performed. Alchemy reserves the right to perform and manage any construction or material alterations within the GDC and Collocation Space areas at rates to be negotiated between the Parties hereto.
C. Customer's use of the Space, installation of Equipment and access to the GDC shall at all times be subject to Customer's adherence to the generally accepted industry standards, security rules and rules of conduct established by Alchemy for the GDC. Except where advanced written permission has been given by Alchemy, Customer's access to the GDC shall be limited to the individuals identified and authorized by Customer to have such access. Customer agrees not to erect any signs or devices to the exterior portion of the Space without submitting the request to Alchemy and obtaining Alchemy's written approval.
D. Customer may not provide, or make available to any third party, space within Collocation Space without Alchemy's prior written consent. If Customer should provide, or make available to any third party, space within the Collocation Space without obtaining the written consent of Alchemy, Customer shall be in breach of this Agreement and Alchemy may pursue any legal or equitable remedy, including but not limited to the immediate termination of this Agreement.
E. Customer is responsible for maintaining the cleanliness of the Collocation Space.
There shall be no trash or dust allowed to accumulate within the Space. Neither
food nor drink is permitted within the Collocation area, including within individual cages.
F. Customer's use of Alchemy services shall at all times comply with Alchemy's then-current Acceptable Use Policy, as amended by Alchemy from time to time. The sending of unsolicited bulk email is specifically forbidden under this Agreement. Customer activities that result in IP address blocking, filtering, or other such actions by outside third party entities which cause Alchemy or any of Alchemy’s other customers to be negatively impacted is also specifically forbidden under this Agreement. If Customer is found by Alchemy to be in violation of any part of this section, Alchemy has the right to immediately terminate services to customer and/or this Agreement.
F. Customer is responsible for retrieving entry passes from its terminated employees or others whom Customer no longer wishes to have access to its Collocation space.
H. Alchemy shall not arbitrarily or discriminatorily require Customer to relocate the Equipment; however, upon sixty (60) days prior written notice or, in the event of an emergency, such time as may be reasonable, Alchemy reserves the right to change the location of the Space or the GDC to a site which shall afford comparable environmental conditions for the Equipment and comparable accessibility to the Equipment. Alchemy and Customer will work together in good faith to minimize any disruption of Customer's services as a result of such relocation. Alchemy shall be responsible for the cost of improving the Space to which the Equipment may be relocated, and for relocation of Equipment interconnected to Alchemy services, except that Alchemy shall not be responsible for relocating facilities installed in violation of this Agreement.
I. All equipment brought into or taken out of the GDC facility must be cleared through Alchemy's equipment control system. Alchemy shall not be held responsible for the condition of equipment shipped to the GDC that arrives in damaged condition. If Customer wants to remove any Customer Equipment during the Term of this Agreement, Customer shall provide Alchemy with a written description of the Customer Equipment to be removed. Upon request, Customer shall pay all sums payable to Alchemy prior to removal of a substantially amount of Customer Equipment.
8. INSURANCE
A. If Space is contracted for, Customer agrees to maintain, at Customer's expense, during the entire period of occupancy, for each Collocation Space (i) Comprehensive General Liability Insurance for bodily injury or property damage, in an amount not less than one million dollars per occurrence; (ii) Workers' Compensation Insurance, with a limit not less than five hundred thousand dollars Bodily Injury each accident (iii) "All Risk" Property insurance covering all of Client's personal property located at the GDC, (iv) commercial automobile liability insurance (bodily injury and property damage) in an amount not less than one million dollars per accident for all vehicles that wish to use loading areas of the Alchemy facility (including owned, non-owned, leased and hired vehicles); (v) Errors and Omissions insurance. All property insurance covering customer's property located in the GDC premises shall expressly waive any right of subrogation on the part of the insurer against Alchemy, its officers, directors employees, agents and contractors. Customer further agrees to name Alchemy and the party from whom Alchemy leases its GDC space, as "Additional Insured" on the appropriate policies.
B. A reputable insurance company authorized to do business in the state of California shall issue all policies subject to this provision. Prior to installation of equipment in Customer's collocation space, customer shall furnish Alchemy with certificates of insurance which evidence the minimum levels of insurance set forth herein. Customer shall not materially alter or cancel insurance relating to GDC occupancy without notification to Alchemy of not less than thirty (30) days.
9. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
A. Equipment: Customer represents and warrants that it owns or has the legal right and authority, and will continue to own or have such right and authority during the term of this Agreement, to place and use the Customer Equipment as contemplated by this Agreement. Customer further represents and warrants that its placement, arrangement, and use of the Customer Equipment in the Gigabit Data Center complies with the Customer Equipment Manufacturer's environmental and other specifications.
B. Customer's Business: Customer represents and warrants that Customer's services, products, materials, data, information and equipment used in connection with this Agreement and Customer's use of GDC Services (collectively, "Customer's Business") does not as of the Installation Date, and will not during the term of this Agreement operate in any manner that would violate any applicable federal, state or local law or regulation or infringe in any way upon the rights of third parties.
C. Breach of Warranties: In the event of any breach, or reasonably anticipated breach, of any of the foregoing warranties, in addition to any other remedies available in law or equity, Alchemy shall have the right, at Alchemy's sole discretion, to suspend any related GDC Services if deemed reasonably necessary by Alchemy to prevent any harm to its business.
10. DISCLAIMERS AND LIMITATION OF LIABILITY
A. The collocation space is accepted "as is" by customer. Customer acknowledges that no representation has been made by Alchemy as to the fitness of the collocation space for customer's intended purpose. Except for the warranties set forth in this article, there are no warranties, whether express, implied, oral, or written, with respect to the collocation space or services covered or furnished pursuant to this agreement, including but not limited to, any implied warranty of merchantability or fitness for a particular purpose. Moreover, the remedies provided in this article are exclusive and in lieu of all other remedies.
B. Customer and its representatives visit the GDC at their own risk and Alchemy assumes no liability for any harm to such persons resulting from any cause other than Alchemy's negligence or willful misconduct resulting in personal injury to such visitors.
C. Alchemy assumes no liability for damage or loss relating to customers business. To the extent Alchemy is liable for any damage to or loss of Customer's equipment, such liability shall be limited solely to the then-current value of Customer's equipment.
D. The liability of Alchemy for damages arising out of the services provided herein, including, without limitation, mistakes, omissions, interruptions, delays, tortious conduct or errors, or failure to furnish space, whether caused by acts of commission or omission, shall be limited to a prorated refund of the charges paid by client for the use of the space. The receipt of such refunds shall be the sole remedy afforded to customer.
E. Customer is responsible for providing Alchemy with emergency contacts, including phone numbers and pager numbers. Alchemy shall use reasonable efforts to contact Customer in the event of a malfunction affecting Customer’s equipment (e.g. a power outage affecting Customer’s equipment). However, Alchemy shall not be liable for damage, which may occur as a result of an inability to make contact with Customer’s emergency representative.
11. CONFIDENTIAL INFORMATION
A. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, including the terms and conditions of this Agreement ("Confidential Information"). Confidential Information will include, but not be limited to, each party's proprietary software and customer information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information.
B. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
12. NON-SOLICITATION
Customer understands and acknowledges that; due to the highly technical nature of Alchemy's business Alchemy would suffer significant financial damage from the loss of GDC or other Alchemy employees. Therefore, Customer agrees that it shall refrain, during the term of this Agreement and for a period of one year after the expiration of this Agreement, from directly or indirectly employing or seeking or attempting to employ or solicit for employment, in any capacity (whether as a full or part time employee or as a consultant or independent contractor) any person who is employed at Alchemy.
13. EXCUSED PERFORMANCE AND FORCE MAJEURE
Neither Party shall be liable to the other Party under this Agreement or deemed in default of this Agreement for any failure or delay in performance of their obligations or attempts to cure any breach that is due to causes beyond its reasonable control, including but not limited to, acts of nature, including earthquakes and floods, fire, natural disaster, accident, governmental actions, civil disturbances, act of terror, fiber cut, labor strikes, interruptions of power, or transportation problems.
14. ASSIGNMENTS OR TRANSFER
Customer shall not assign or transfer the rights or obligations associated with this Agreement, in whole or in part, without Alchemy's prior written consent, except that Customer may transfer or assign its rights and obligations in connection with the merger or sale of all or substantially all of its assets.
15. PUBLICITY
Customer shall not use Alchemy's name in publicity or press releases without Alchemy's prior written consent.
16. LIMITATION OF LIABILITY
A. In no event shall Alchemy or any of its officers, directors, agents, contractors or employees, be liable for any loss of profit or revenue or for indirect, incidental, special, punitive or exemplary damages incurred or suffered by Customer arising from or pertaining to Customer's use or occupancy of the Collocation Space including, without limitation, damages arising from interruption of electrical power or HVAC services.
B. Customer shall indemnify and hold harmless Alchemy, its officers, directors, agents, contractors and employees, from and against any and all third party claims, costs, expenses or liabilities arising from or in connections with Customer's use of the GDC facility. Customer further agrees to indemnify Alchemy against Customer's acts of negligence resulting in damage to third parties.
18. GOVERNING LAW
This Agreement shall be governed and construed by the laws of the State of California except as they pertain to its conflict of law provisions. The courts of the State of California, County of Los Angeles shall have jurisdiction over any legal disputes relating to or in connection with this Agreement.
19. ENTIRE AGREEMENTAND SEVERABILITY
This Agreement constitutes the entire understanding between the parties and supercedes all other agreements, whether written or oral. This Agreement may not be modified except in a writing, which is signed, by both parties or their duly authorized representatives. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of this Agreement, or the validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
20. NOTICE
Any and all notices to be provided under this agreement shall be in writing. Notice shall be considered received, delivered and effective three (3) business days following posting when mailed, postage prepaid, by United States mail (certified or registered mail, return receipt requested), addressed to the party to be notified. If delivered in person, notice shall be considered received, delivered and effective the date so delivered. For purposes of notice, the addresses of the parties, until changed as herein provided, shall be as follows. If intended for Alchemy, Notice shall be addressed: Alchemy Communications, Inc., 1200 West 7th Street, Suite L1-100, Los Angeles, CA 90017, attention: Igor Shalkevich; with a copy addressed to: Alchemy Communications, Inc., 1200 West 7th Street, Suite L1-100, Los Angeles, CA 90017, attention: Zane Alsabery. If intended for Customer, Notice shall be addressed as indicated in the Customer signature section below. Any party hereto, by written notice to the other party, may change the address for notices to be sent to them.