Web Hosting Services Terms and Conditions

Revised: April 26, 2011

This Hen's Teeth Network Web Hosting Services Terms and Conditions incorporates the following documents by reference: (i) the Services Description that describes the Services you are buying and related fees; (ii) these Web Hosting Terms and Conditions; (iii) the Acceptable Use Policy. When we use the terms "Terms and Conditions" or "Agreement" in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the form of Agreement prepared by Hen's Teeth Network or accept the Agreement as part of Hen's Teeth Network's online order process.

1. Defined Terms.
   1. As used in this Agreement, the following terms have the meaning ascribed to them below:
      • “Acceptable Use Policy” means HTN’s then-current Acceptable Use Policy applicable to some or all of the Services, and located on HTN’s website or such other location specified by HTN from time to time.
      • “Agreement” has the meaning ascribed to that term in the introductory paragraph of this document.
      • “AUP” means the Acceptable Use Policy.
      • “Bankruptcy Code” means The Bankruptcy Code of 1978, as amended, 11 U.S.C. §101, et. seq.
      • “Customer” means you, the party using HTN's Services.
      • “Customer Data” means any and all information provided to the Service by, or on behalf of, Customer including, without limitation, any and all software, data and web site content.
      • “Effective Date” has the meaning ascribed to that term on the Order Form.
      • “Feedback” has the meaning ascribed to that term in Section 6 below.
      • “HTN” means Hen's Teeth Network, Inc.
      • “HTN’s Confidential Information” has the meaning ascribed to that term in Section 5.1 below.
      • “Indemnified Party” has the meaning ascribed to that term in Section 9 below.
      • “Ongoing Fees” means the recurring fees listed in the Order Form.
      • “One-Time Fee” means the set-up or one-time fees listed in the Order Form.
      • “Order Form” means, as applicable, (a) the form completed online to purchase the Services, or (b) if submitted on paper, the cover page(s) to this Agreement.
      • “Service Activation Date” has the meaning ascribed to that term on the Order Form.
      • “Services” has the meaning ascribed to that term in Section 2.1 below.
      • “Subcontractor” has the meaning ascribed to that term in Section 11.8 below.
      • “Subcontractor AUP” has the meaning ascribed to that term in Section 3.10 below.
2. Services
   1. General. Customer hereby engages HTN to provide the services described in the Description of Services section of the Order Form (collectively, the “Services”).  Conditioned on Customer’s strict compliance with all of the terms and conditions of this Agreement, HTN agrees to provide the Services to Customer in accordance with, and subject to, the terms and conditions set forth in this Agreement.
   2. Support and Maintenance. Customer acknowledges that HTN has no obligation to provide any support services relating to the Services including, by way of example, support services for any application specific issues such as application programming, application performance tuning, HTML coding or any other such issues, unless specifically contracted for by Customer and agreed to by HTN in a separate written agreement. However, HTN may, from time to time and with or without notice, perform maintenance services with respect to the Services, which may require downtime during which the Services may not be available.
   3. Limitations on Services.
      1. Suspension. HTN may immediately suspend the provision of the Services, with or without notice, if there is a denial of service attack on any of HTN’s servers or other event for which HTN reasonably believes that the suspension of the provision of Services is necessary to protect its network or its other customers.
      2. Spam. Customer acknowledges and agrees that in an effort to control spam, HTN may, in its sole and absolute discretion, (a) utilize certain technologies to block incoming and outgoing email, (b) cause its servers not to accept connections from unsecured systems (including, without limitation, open relays, open proxies, open routers or any other system that has been determined to be available for unauthorized use), (c) reject connections from systems that use dynamically assigned or residential Internet protocol addresses, and (d) reject connections from any Internet protocol address that does not have reverse DNS (a PTR record).
   4. Internet Protocol Addresses.  HTN may change any static Internet protocol addresses assigned to Customer from time to time.  In any such event, HTN shall use reasonable efforts to give Customer at least 7 days notice before any such changes goes into effect.
3. Customer’s Obligations and Limitations on Use of Services.
   1. Bandwidth and Storage Capacity. Customer agrees not to exceed its designated bandwidth or storage capacity with respect to its use of the Services.  If, notwithstanding the foregoing, (a) Customer does exceed its designated bandwidth and/or storage capacity, or (b) Customer’s bandwidth and/or storage space usage otherwise adversely affects other customers or HTN’s systems, or the systems of its suppliers, HTN may take remedial action that may affect Customer’s account access, Internet protocol address, or other information, including without limitation the disabling, suspension or limitation of the Services with or without notice.
   2. Reasonable Use of Services. The Services are provided in a shared server environment and are provided only for reasonable, legitimate purposes, as determined by HTN in its sole and absolute discretion.   Customer agrees not to use the Services for any other purpose, and if HTN, in its sole and absolute discretion, determines that Customer is using the Services for any such other purpose, HTN may suspend, disable, limit, or terminate Customer's account with or without notice.
   3. Customer Data Back Up. Customer shall be solely responsible for any loss of any Customer Data and HTN shall have no liability therefore.  Accordingly, Customer shall (a) create and maintain a current copy of all Customer Content stored on HTN servers, and (b) store such copy in a reasonably secure location other than a HTN server or location, regardless of whether HTN provides data backup services or data backup facilities to Customer.
   4. Compliance With Applicable Laws. Customer shall comply with all laws and governmental regulations applicable to the Services, and HTN shall not have any responsibility to Customer therefore, including, without limitation, any responsibility to advise Customer of Customer’s responsibilities in complying with any laws or governmental regulations applicable to Customer’s use of the Services.
   5. No High Risk Use. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug, and Cosmetic Act. 
   6. Customer’s Applications and Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) the Services (including, without limitation, the application software used in connection with the Services) may have certain software and/or hardware dependencies in order to run properly, (b) HTN may change these software and/or hardware dependencies from time-to-time, without notice or liability, and (c) HTN has no obligation whatsoever to assist or ensure that Customer’s applications or website functions properly on the Service(s).  Accordingly, Customer shall be solely responsible for (and agrees to pay to HTN at HTN’s then-applicable hourly rate for) any time or expenses incurred to change or modify Customer’s applications or website to function properly on the Service(s), and Customer’s inability to have its applications or website function properly using the Service(s) shall not relieve Customer of any of its obligations under this Agreement.
   7. Security. HTN has no obligation to provide any security services with respect to the Services unless expressly described in the “Description of Services” section of the Order Form. Customer acknowledges the inherent security risks of the Internet.  Accordingly, notwithstanding any obligation of HTN to provide security services to Customer, HTN shall have no liability for any breach of security, and Customer agrees to take appropriate safeguards with respect to its use of the Services including the storage of Customer Data.
   8. Third Party Use of Services. Customer shall be solely responsible for any unauthorized use of the Services by any third party and shall pay all fees incurred for its account by any person using the Services.
   9. Acceptable Use Policy. HTN may from time to time post an Acceptable Use Policy on HTN’s website or otherwise give Customer a notice of an Acceptable Use Policy applicable to some or all of the Services.  Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this Section 3.9. HTN may change such policy by posting the revised policy on HTN’s website or by giving Customer notice thereof. Any such change shall be effective on the earlier of the date the new policy is posted or on the date HTN gives Customer notice thereof. If Customer believes that any specific change to the AUP would materially and adversely affect Customer, Customer agrees to provide HTN with a written notice describing such material adverse affect in reasonable detail within seven (7) days after the effective date of the change. In such event, HTN may, in its sole and absolute discretion, agree to waive the applicable change by giving notice thereof to Customer within seven (7) days after HTN’s receipt of Customer’s notice.  Otherwise, Customer shall have the right to terminate this Agreement by giving notice thereof to HTN within two (2) days after the expiration of such seven (7) day period, in which event this Agreement shall terminate on the date such notice is given by HTN. Customer agrees to cooperate with HTN’s reasonable investigation of any actual or suspected violation of the AUP.
   10. Subcontractor’s Acceptable Use Policies. HTN may have referenced a Subcontractor’s acceptable use policy on the Order Form (each a “Subcontractor AUP”) and/or may from time to time give Customer a notice of a Subcontractor’s acceptable use policy applicable to some or all of the Services (each also a “Subcontractor AUP”).  Customer agrees to comply with all Subcontractor AUPs and any changes thereto which are made in accordance with the further provisions of this Section 3.10. HTN may change a Subcontractor AUP by giving Customer notice thereof. Any such change shall be effective on the date HTN gives Customer notice thereof. If Customer believes that any specific change to the Subcontractor AUP would materially and adversely affect Customer, Customer agrees to provide HTN with a written notice describing such material adverse affect in reasonable detail within seven (7) days after the effective date of the change. In such event, HTN may, in its sole and absolute discretion, remove the applicable Subcontractor from the provisions of Services within thirty (30) days after HTN’s receipt of Customer’s notice.  Otherwise, Customer shall have the right to terminate this Agreement by giving notice thereof to HTN within two (2) days after the expiration of such thirty (30) day period, in which event this Agreement shall terminate on the date such notice is given by HTN. Customer agrees to cooperate with HTN’s reasonable investigation of any actual or suspected violation of a Subcontractor AUP.  To the extent there is a conflict between the provisions of this Agreement (absent the AUP and all Subcontractor AUPs), the AUP, and one or more Subcontractor AUPs, the most restrictive provisions shall apply.  
   11. Microsoft Software.  HTN may from time to time offer Services that include Microsoft software. Customer’s use of such Services is subject to the Microsoft license available at http://www.rackspace.com/aboutus/legal/microsoftlicense.php, and hereby incorporated herein.
   12. Further Restrictions. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by HTN. Customer agrees not to reverse engineer, decompile, or disassemble any HTN provided software, except and only to the extent that applicable law expressly permits such activity. Customer agrees not to take any action or install any software that may preclude or impair HTN’s ability to access or administer its servers.
4. Fees, Invoices and Collections.
   1. Fees and Taxes. HTN shall send an invoice for all fees (including all Ongoing Fees and/or One-Time Fees) to Customer by email to the Billing Email Address set forth on the Order Form and Customer agrees to pay all such invoices by the due date on each such invoice or, if no due date is specified, within 30 days after the date each such invoice is sent. HTN’s first invoice shall include One-Time Fees and a prorated portion of the Ongoing Fees from the Service Activation Date to the last day of the billing period. Following the Service Activation Date, all Ongoing Fees will be invoiced in advance. Customer agrees to provide a valid Billing Email Address and to notify HTN at least thirty (30) days in advance of any change to its Billing Email Address. HTN may increase the Ongoing Fees (a) in the manner permitted in the Description of Services, and/or (b) at any time by providing thirty (30) days prior written notice thereof to Customer. In addition to the Ongoing Fees and One-Time Fee, Customer will pay any tax HTN becomes obligated to pay or collect, exclusive of taxes based on the net income of HTN. If Customer is exempt from otherwise applicable taxes, Customer must submit its tax identification number and exemption certificate at the same time it submits this Agreement. Subject only to the terms of Sections 4.2 and 9.2 below, all amounts paid to HTN are non-refundable.
   2. Refund of Fees.  If Customer terminates the Services in accordance with Section 7 below, HTN shall refund a pro-rated portion of the Ongoing Fees paid by Customer for any month in which HTN does not provide Services to Customer. 
   3. Other Fees. Customer further agrees to pay (a) excess usage fees if Customer uses the Service in excess of the limits established by HTN including any fees for excess storage and/or bandwidth usage, and/or (b) HTN’s then-current reactivation fee following a suspension of service for any reason.
   4. Interest, Penalties, and Collections. HTN may impose a late payment charge of 1-1/2% per month or, if less, the maximum rate allowed by law on all past due outstanding balances. If a check is returned to HTN for insufficient funds Customer shall pay to HTN a returned check fee of $25. Customer will reimburse HTN for all reasonable costs and expenses incurred by HTN (including, without limitation, reasonable attorneys’ fees and expert fees) in collecting any overdue amounts, late payment charges and/or reactivation fees.
   5. Suspension and Termination of Service. If Customer fails to pay any amount due hereunder or under any other agreement with HTN within ten (10) days after the applicable due date, HTN may, with or without notice, suspend the Services to Customer, in whole or in part. If Customer fails to pay any amount due hereunder or under any other agreement with HTN within 30 days after the applicable due date, HTN may, with or without notice, terminate this Agreement.
5. Confidentiality.
   1. HTN’s Confidential Information. “HTN’s Confidential Information” means, subject to Section 5.2 (Exceptions to Confidential Information) below, (a) all tools, methods and techniques used by HTN to provide the Services, the Services performance levels, security, and cost, (b) any and all Feedback, and (c) any and all nonpublic information that HTN designates as being confidential to Customer or which, under the circumstances surrounding disclosure ought to be treated as confidential by Customer.
   2. Exceptions to Confidential Information. The term “HTN’s Confidential Information” does not include information, however designated, that Customer can establish by written documentation (a) is or subsequently becomes publicly available without Customer’s breach of any obligation owed to HTN, and/or (b) is known to Customer prior to HTN’s  disclosure of such information to Customer.
   3. Obligations Regarding Confidential Information. Customer agrees that during the term of this Agreement and for a period of five (5) years thereafter it will (a) refrain from using HTN’s Confidential Information except as contemplated by this Agreement during the term of this Agreement, (b) subject to Section 5.4 (Permitted Disclosures) below, refrain from disclosing any of HTN’s Confidential Information to third parties, and (c) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information but no less than reasonable care, to keep confidential HTN’s Confidential Information; provided, however, that such obligations in clauses (b) and (c) above shall continue with respect to any of HTN’s Confidential Information that constitutes a trade secret under applicable law for as long as such information constitutes a trade secret under applicable law. Customer acknowledges and agrees that (x) all tools, methods and techniques used by HTN to provide the Services, (y) the performance levels, security, and cost of the Services, and (z) any and all Feedback, in each instance constitutes trade secrets of HTN.
   4. Permitted Disclosures. Customer may disclose HTN’s Confidential Information in accordance with a judicial or other governmental order provided that Customer (a) if permitted by law, gives HTN as much notice as is reasonably practicable prior to such disclosure (so that HTN can seek a protective order or equivalent), or (b) if the notice contemplated by clause (a) above is not permitted by law, uses commercially reasonable efforts to obtain written assurance from the applicable judicial or governmental entity that it will afford HTN’s Confidential Information the highest level of protection afforded under applicable law or regulation.
6. Ownership.
   1. Customer acknowledges and agrees that (a) HTN owns, and shall continue to own any and all intellectual property (including, without limitation, all of HTN’s Confidential Information) that HTN may utilize or develop in the course of providing the Services, and (b) Customer does not acquire (and shall not acquire) any ownership interest or rights to possess HTN’s server(s) or other hardware, and has no right of physical access to the hardware. To the extent that Customer provides any comments, instructions, suggestions, supporting information, and/or other feedback to HTN respecting the Services and/or any other subject matter of this Agreement (collectively, “Feedback”), such Feedback shall be owned exclusively by HTN. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to HTN as of the date such rights first vest in Customer.
7. Term and Termination.
   1. Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided in this Agreement.
   2. Termination. Either party may terminate this Agreement by giving notice thereof to the other party in which event this Agreement shall terminate on that date which is thirty (30) days after the date the notice of termination is given.
   3. Termination and Suspension HTN. HTN may terminate this Agreement immediately by giving notice to Customer upon the termination of any other agreement between Customer and HTN as a result of a breach by Customer.  HTN may further terminate this Agreement immediately by giving notice to Customer if (a) Customer voluntarily files a petition for relief under the Bankruptcy Code, (b) an order for relief under the Bankruptcy Code is entered against Customer following the filing of an involuntary petition for relief under the Bankruptcy Code against Customer, (c) such an involuntary petition is filed against Customer and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) Customer makes an assignment for the benefit of its creditors, (e) a receiver is appointed for Customer or any of its assets, (f) any of Customer’s assets are attached or foreclosed, and/or (g) HTN believes that Customer is infringing the intellectual property rights of others or is aiding or threatening such infringement. HTN may immediately suspend the Services or terminate this Agreement (x) in response to a request or an order from a court or a law enforcement or other government agency, or if HTN reasonably believes the Services are prohibited by applicable law, (y) if the provision of the Services become impractical or unfeasible for any technical, legal or regulatory reason, and/or (z) HTN reasonably believes that the Services are being used in violation of this Agreement (including, without limitation, the AUP and/or Subcontractor AUP), or Customer fails to cooperate with any HTN investigation of any suspected violation of the AUP and/or Subcontractor AUP.
   4. Survival. Each party’s obligations under this Agreement which are not, by the express terms of the Agreement, fully to be performed during the term of this Agreement (including, without limitation, Customer’s obligations under Sections 3, 4, 5, 6, 7.5, 7.6, 9, 10, and 11) shall survive any termination of this Agreement.
   5. Obligations Upon Termination. Upon the termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Services (but not any URL or top level domain or domain name), and (c) that HTN may take steps to change or remove any such IP addresses. Upon termination of this Agreement for any reason, HTN may destroy all Customer Data. Termination of this Agreement for any reason does not relieve Customer of the obligation to pay all amounts due. For the avoidance of doubt, HTN will not be required to return or destroy any computer files, tapes, CDROM disks, and/or other media created as normal backups of HTN’S computer disk files which may contain the Customer’s information.
   6. Obligations Upon Suspension. Upon the suspension of the Service for any reason, Customer agrees to immediately cease using the applicable Services. However, suspension of the Services, in whole or in part, for any reason does not relieve Customer of any of its obligations hereunder including, without limitation, its obligation to pay all amounts due at the time of suspension and all amount that become due during and after the period of suspension.  Further, for the avoidance of doubt Customer Data on HTN’s servers will be unavailable during any suspension of Services.
8. Warranties, Disclaimers, and Limitation of Liability.
   1. Limited Guarantee by HTN. HTN warrants to Customer that Customer will be reasonably satisfied with all Services for a period of thirty (30) days after the Service Activation Date. If Customer in good faith is not reasonably satisfied with any particular Services and gives HTN notice thereof describing the reasons for Customer’s dissatisfaction in reasonable detail and within thirty (30) days after the Service Activation Date, then HTN will use commercially reasonable efforts to correct the applicable Services, at HTN’s sole cost and expense. If HTN does not correct the applicable Services within a reasonable amount of time, then HTN shall refund to Customer the amount of Ongoing Fees and/or One-Time Fees Customer has paid and which are attributable to those particular Services unless Customer has not yet paid for such Services, in which event HTN shall issue Customer a credit against the Ongoing Fees and/or One-Time Fees that have not been paid for the amount of Ongoing Fees and/or One-Time Fees which are attributable to those particular Services. HTN’s obligation to use commercially reasonable efforts to correct the applicable Services and to issue, as applicable, a refund or credit to Customer as set forth above shall constitute HTN’s sole obligation and Customer’s sole and exclusive remedy for a breach by HTN of the warranty set forth in this Section 8.1.
   2. Authority. Each party represents and warrants to the other that it has the full power and authority to enter into this Agreement and fully perform all its obligations hereunder.
   3. Customer Warranties. Customer represents and warrants to HTN that (a) all information Customer has provided and will provide to HTN for purposes of establishing and maintaining the Services is accurate and will be kept up to date, (b) Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D:4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, (c) Customer is not located in any country subject to United States embargoes, on the U.S. Treasury Department’s list of Specially Designated Nationals, or on the U.S. Commerce Department’s Table of Denial Order or Entities List, (d) Customer will not provide access to the Services to any person (including any natural person or government or private entity) that is located in any country subject to United States embargoes, on the U.S. Treasury Department’s list of Specially Designated Nationals, or on the U.S. Commerce Department’s Table of Denial Order or Entities List, (e) has reviewed the software and hardware supported by HTN and determined that that the Service(s) will meet Customer’s needs using such hardware and software supported by HTN, and (f) no Customer Data, as used in connection with the Services, will infringe or misappropriate any third party’s trademark, copyright, patent, trade secret, or other intellectual property right.
   4. Disclaimer. Except as expressly provided above in Section 1.1 and notwithstanding anything contained in this Agreement to the contrary, all Services are provided to Customer on an “AS IS, AS AVAILABLE” basis. Except as expressly provided in Section 8.1 and 8.2 above and notwithstanding anything contained in this Agreement to the contrary, HTN makes no representations or warranties relating to the Services or this Agreement including, without limitation, any representations or warranties that (a) the Services shall meet Customer’s requirements, (b) the operation of the Services will be uninterrupted, timely, error free or secure, (c) the Services will be available, or (d) any defects in the Services will be corrected. Customer acknowledges that there are risks inherent in operating computer servers and Internet connectivity that could result in the loss of Customer’s privacy and/or Customer Data and that such risks shall be borne solely by Customer. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTIONS 8.1 AND 8.2 ABOVE, HTN HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, SECURITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT HTN OR ANY OF ITS SUPPLIERS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO ANY AND ALL SERVICES. HTN FURTHER DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES. IN ADDITION, HTN makes no representations or warranties of any kind that the services COMPLY WITH ANY APPLICABLE LAWS (INCLUDING, BY WAY OF EXAMPLE AND WITHOUT LIMITATION, IF APPLICABLE, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AS AMENDED). It is Customer’s sole responsibility to determine whether THE Services are appropriate to assist Customer in COMPLYING WITH ANY APPLICABLE LAW. ANY WARRANTIES MADE BY HTN EXTEND SOLELY TO CUSTOMER.
   5. Consequential Damages. IN NO EVENT SHALL HTN AND/OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR THE SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF HTN AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   6. Limitation of Liability. In no event will HTN and/or its suppliers be liable for (a) any damages of any nature whatsoever resulting from, or related to, business interruption, a breach of security in respect of any of the services, the unavailability of the Services, and/or the loss, delay or inability to use the Services, and/or (b) the loss of any Customer Data or other data, any information, software, products, and/or services caused by the Services, including without limitation the cost of recreating lost data and cost of cover, in each of (a) and (b) above whether for breach of contract, in tort or otherwise. In all events, HTN’s aggregate liability for claims relating to this Agreement and any and all Services, whether for breach of contract, in tort or otherwise, shall be limited to the greater of (y) $100.00, and (z) the amount paid hereunder by Customer during the three (3) month period prior to the date on which the applicable claim is made. Customer acknowledges that it has no rights against any suppliers of Services provided by HTN.
   7. Risk Allocation. Customer acknowledges and agrees that the provisions of this Section 8 represent a reasonable allocation of the risks under this Agreement and that HTN would not enter into this Agreement without such allocation of risks.
9. Indemnification
   1. Customer agrees to indemnify and hold HTN, its parents, subsidiaries, and affiliates and each of their respective officers, directors, attorneys, agents, and employees (each an “Indemnified Party”) harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including, without limitation, any and all attorneys’ and expert witness fees and court costs), that any Indemnified Party may incur or may be subject under any theory of legal liability arising out of or related to (a) the actual or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, (i) this Agreement (including, without limitation the AUP and/or Subcontractor AUP), and/or (ii) any applicable law, (b) any dispute regarding the control of Customer’s account with HTN, and/or (c) a breach of this Agreement by Customer, or any allegation which, if true, would constitute a breach of this Agreement by Customer. Without limiting the generality of the foregoing, Customer shall pay HTN its then current maximum hourly rate per hour (in 1 hour minimum increments) for time reasonably spent by HTN personnel in responding to third party complaints regarding Customer’s use or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, this Agreement (including, without limitation, the AUP and/or Subcontractor AUP including, without limitation, complaints under the Digital Millennium Copyright Act.)
10. Third Party Terms.
    1. Various third party software products may be used in the provision of some or all of the Services.  Customer agrees to comply with the terms and conditions of all licenses applicable to such third party software products which terms and conditions are either  referenced on the Order Form and/or which HTN from time to time gives Customer a notice of.  All such third party terms and conditions shall be deemed incorporated into this Agreement solely with respect to the applicable third party software.
11. General.
    1. Use of Customer’s Name. Customer agrees that HTN may publicly disclose that HTN is providing services to Customer and may include Customer’s name in promotional materials, including press releases and on HTN’s website.
    2. Use of HTN’s Name and Intellectual Property. Customer may not use HTN’s name, trademarks, trade names or other proprietary identifying symbols without HTN’s prior written approval.
    3. Standard Terms. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Customer may use in connection with this Agreement shall have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify, this Agreement, regardless of any failure of HTN to object to such terms, provisions or conditions.
    4. Amendment. Customer and HTN may amend this Agreement, either orally or in writing, to add or delete additional Services. Subject to the preceding sentence and Sections 3.9 and 3.10 above, this Agreement may not be modified or amended, in whole or in part, except pursuant to a writing signed by the parties. Accordingly, no course of conduct shall constitute an amendment hereto.
    5. Governing Law, Venue and Jurisdiction. This Agreement and the rights and obligations of the parties under this Agreement shall be construed and interpreted in accordance with the federal laws of the United States and the laws of the State of Missouri, without regard to the application of conflicts of law principles. Any court proceeding pursuant to any matter under, related to or arising out of this Agreement (including tort claims) that may for any reason be litigated before a court shall be brought solely and exclusively in the federal courts sitting in St. Louis, Missouri, unless no federal subject matter jurisdiction exists, in which case such proceeding shall be brought in the state courts sitting in St. Charles County, Missouri. Any counterclaims and other related actions must be brought in the same venue as the original action. Customer hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
    6. Equitable Relief. In the event of any breach or threatened breach of the provisions of this Agreement by Customer concerning ownership or misuse of HTN’s Confidential Information, HTN’s intellectual property, and/or the Services, the parties acknowledge that monetary damages may be an inadequate remedy and may cause irreparable harm to HTN for which damages may not be an adequate remedy, and as such, each party agrees that in such event, HTN will be entitled to obtain from a court extraordinary relief including but, not limited to, temporary restraining orders, preliminary injunctions, permanent injunctions, and/or decrees of specific performance, in each instance without posting a bond.
    7. Notices. Subject to the further provisions of this Section 11.7, all notices, including notices of address change, given hereunder shall be in English, in writing and shall given by (a) personal delivery, or (b) certified mail, return receipt requested, postage and fees prepaid, to the address/addresses first above set forth or to such other addresses as the parties may designate in writing. Any such notices sent to HTN shall be sent to the attention of the president, and any notices sent to Customer shall be sent to the attention of the Primary Account Contact identified on the Order Form. In addition, notices to Customer may be given by electronic mail to the Primary Email Address set forth on the Order Form of this Agreement. Any notices given in accordance with this Section 11.7 shall be deemed given and received (x) if delivered in person, on the date or personal delivery, (y) on the date of sending if given by email to Customer, or (z) if sent by certified mail, five (5) days after being mailed.
    8. Assignment and Subcontracting. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned, delegated or subcontracted by Customer (whether by operation of law or otherwise) without the prior written consent of HTN. HTN may assign this Agreement, delegate and/or subcontract any one or more of its obligations hereunder to any Subcontractor, in each instance without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.  In furtherance of the forgoing but without limiting the generality thereof, HTN may engage one or more Subcontractors to provide any Services hereunder (each a “Subcontractor”) and shall have the sole right to contract with and manage such Subcontractors.  In any such event, (a) Customer will cooperate with such Subcontractors to the same extent as with HTN, and (b) Customer will look solely to HTN for performance of Services delivered by or with assistance of Subcontractors.  With respect to any Services performed by any particular Subcontractor, (x) Customer’s sole and exclusive remedy for any claim of any type or character arising from or related to provision of such Services shall be against HTN and not the Subcontractor (and Customer hereby releases such Subcontractor from any such claim), (y) such Subcontractor is an intended Subcontractor beneficiary with the right to assert these terms in defense against any claim related to such Services brought by Customer directly against the Subcontractor, and (z) such Subcontractor is relying on the existence of these terms in agreeing to provide such Services to or on behalf of HTN.   Unless otherwise agreed to by HTN or as reasonably necessary in connection with Customer’s receipt and use of any of the Services, Customer will not communicate directly with any Subcontractor.
    9. Relationship of the Parties. Nothing in this Agreement shall create any association, partnership, joint venture, or the relation of principal and agent. No acts performed or words spoken by either party with respect to any third party shall be binding upon the other. Any and all obligations incurred by either party in connection with the performance of any of its obligations hereunder shall be solely at that party's own risk, and the other shall not be obligated in any way therefore except as specifically provided for herein to the contrary.
    10. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
    11. Waiver. HTN’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a “course of dealing” or a waiver of any such provision or provisions as to any future violations thereof, nor prevent that HTN thereafter from enforcing each and every other provision of this Agreement.
    12. Cumulative Remedies. Except as provided in Section 8.1 (Limited Guarantee by HTN) above, no right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
    13. Force Majeure. HTN shall not be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, civil or military unrest, acts of public enemy, riots, war, strikes, lack or failure of public network, telecommunications or transportation facilities, fire, explosion, flood, earthquake, laws or governmental regulations, acts or omissions of Customer, vendors, suppliers or service providers, equipment failures, or other causes that are beyond the reasonable control of HTN.
    14. Time For Bringing Suit. No action under this Agreement may be brought by Customer more than two (2) years after the cause of action first arises.