>Newtek Technology Solutions Terms of Service
Newtek Technology Solutions Terms of Service2018-11-19T10:52:54+00:00

Terms of Service

The terms and conditions set forth herein (this “Agreement”) constitute the full and complete agreement between you, the entity on whose behalf you are accepting this Agreement, and your and its agents, successors and assigns (collectively, “you” or “your”) and Newtek Technology Solutions, Inc. (“NTS”).  Your agreement to be bound by the terms contained herein is acknowledged by your use any of the NTS software, services or products, including without limitation web and cloud hosting and related services, made available to you, whether directly from NTS or through a reseller (collectively, the “NTS Services”).

This Agreement, as well as any additional NTS policies referenced herein, together with all modifications thereto, constitutes the complete and exclusive agreement between you and NTS concerning your use of the NTS Services. The terms contained in this Agreement supersede and replace any other agreement or negotiation between you and NTS whether oral, written, or otherwise including any statements made by any representative of NTS, at any time.

By purchasing and/or using the NTS Services, you acknowledge that you have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this agreement by reference, as well as any new, different or additional terms, modifications, conditions or policies which NTS may establish and/or revise at any time, and any agreements that NTS is currently bound by or will be bound by in the future.

You agree that NTS may modify this Agreement from time to time. You agree to be bound by any changes NTS may make to this Agreement as of the date on which such changes are made effective. You agree that NTS shall not be bound by any representations made by third parties who you may use to purchase goods and/or services offered by NTS, including any reseller.

You warrant in your personal capacity that you have the power, authority, and capacity necessary to undertake the obligations set forth herein for yourself and, if applicable, on behalf of any entity on whose behalf you entering into this Agreement.

License

NTS, subject to the terms and conditions set forth herein, hereby grants you a non- exclusive, limited, personal, license to use the NTS Services for the term of this Agreement as set forth herein. Your rights under this Agreement may be assigned only upon prior notice and express written approval by NTS. Any other assignment is null andvoid ab initio.

Ownership of Intellectual Property

You hereby acknowledge that NTS owns all rights, titles and interests in its intellectual property, including but not limited to: trade names, service marks, inventions, copyrights, trade secrets, patents and know-how relating to the design, function or operation of plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This Agreement does not constitute a license to you to use NTS trade names or service marks. Your use of any intellectual property rights and/or Confidential Information mentioned in this Agreement or otherwise owned or licensed by NTS is limited to your use in connection with the NTS Web Site, Hosting Services, SupportServices and/or any NTS software, service, or product made available to you.

Technical Knowledge to use NTS Services

You are responsible for selecting the NTS Services that best meets your needs; NTS is not responsible for your failure to purchase any services offered by NTS. You confirm they you have the technical knowledge to procure the services offered by NTS that are best suitedfor you.

Adherence to Laws

You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicableFederal, State or local government.

You agree to comport with all export laws, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Dept. of Treasury Office of Foreign Assets Controls (“OFAC”), and the International Traffic in Arms Regulations  maintained by the Department of State.

You further warrant that you are not located in, nor will you be located in for so long as you are using the NTS Services, a sanctioned country or using, nor will you use, the NTS Services with any of the sanctioned countries. OFAC prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. If you are or become located in a Sanctioned Country or listed as an SDN, you are prohibited from registering or signing up with, subscribing to, or using the NTS Services. Unless otherwise provided with explicit permission, NTS prohibits the use of any of the NTS Services in connection with, any Country-Code Top Level Domain Name for any SanctionedCountry.

Data Security

NTS makes reasonable efforts to maintain the security of the operation of the NTS service; however, because many events and circumstances are beyond the control of NTS, NTS does not in any way warrant or otherwise guarantee the availability of the NTS Services and it shall not be responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues, for any reason, whether due to theactive or passive negligence of NTS or otherwise.

NTS does not have knowledge of the data you store within NTS’s hosted systems, including the quantity, value or use of your data. You are responsible for maintaining the security and confidentiality of all information and data you or any other person (including any reseller of the NTS Services to you) places or makes available on, or transmits through, NTS’s hosted systems (“Your Information”),including, but not limited to website, e-mail and database file information.  NTS has no obligation related to Your Information and is not responsible for anything that happens, including without limitation any loss of, breach of or unintended disclosure or use of Your Information resulting from someone using your accountinformation/ password to obtain access to the NTS Services.

You agree that you will maintain the confidentiality of  your credentials used to access the NTS Services and that you assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your credentials. You further agree to defend and indemnify and hold harmless NTS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your credentials.

You are therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the NTS Services, including loss of Your Information, including any personal or “cardholder data” as that term is defined in the Payment Card Industry-Data Security Standards (PCI-DSS). You are sole administrator of Your Information. You acknowledge and agree that NTS is not, and will not be, your sole form of storage and back up of information, and that you have stored your data, including all of your Information in an additional location that you deem appropriate for your data storage.

You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express consent. You shall maintain records of any such consent throughout the term of any agreement that you have with NTS and for three years thereafter.

Privacy is your responsibility. You acknowledge that there are risks with privacy inherent with the use of internet connectivity that could result in loss of your and/or your customers’ privacy. NTS cannot guarantee that the technical, physical, and organizational measures we take will prevent every privacy and security threat. You remain responsible for personal and other sensitive information stored on, collected by or processed through the Services, for compliance with applicable data protection laws, and for encrypting any personal or otherwise sensitive information storedor transmitted to/from NTS’ hosted system.

Disclosure of Information/Malicious Activity Provisions

You agree not to undertake anyaction which is harmful or potentially harmful to the NTS server structure.

You may not utilize, enable, upload or publicly store source code, executable code or programs on the NTS network or servers that are designed to perform the following activities including, without limitation: (a) performing local/remote security vulnerability scans; (b) simulating local shell/OS access by means of a tunneled/encapsulated connection to a remote host; (c) circumventing firewall restrictions; (d) connecting to any IRC/Peer to Peer file sharing server/network; (e) providing tracker servers to BitTorrent clients; (f) running any kind of proxy server (including anonymous proxies); and/or (g) exploiting any other vulnerabilities, as determined by NTS.

NTS reserves the right to limit the access to the infrastructure or to block any network access it believes is harmful.  NTS shall not be responsible for delay or loss of data due to NTS limiting access to the infrastructure or blocking network access or IP addresses seen by NTS as unsafe/malicious.

You may not make your account (including but not limited to web space, email accounts, bandwidth, storage space, or reseller rights) available to any third party in any way, including but not limited to the use of Sub Domains, Add-on Domains, Sub Directories orby any other means.

Computer Securityand Prohibition on Unauthorized Audits by You

NTS uses a third party to run security and vulnerability audits of its network. These audits include, but are not limited to, port scans, server configuration audits and other security and vulnerability checks that help ensure that the network NTS manages is secure. At times, current or potential NTS customers request to have their own audits run on the NTS network. NTS prohibits you as well as third parties from running any type of security audit or check of the NTS network, apart from those audits or checks that are initiated by NTS or that have prior written approval from NTS. Unauthorized scans or checks of the NTS network will be treated as an attack against the NTS network and will be dealt with accordingly, including, but notlimited to, immediate account termination and/or any legal recourse available.

Backups

NTS provides backup services (with the exception of IIS .log files) for purchase by NTS. Unless you have purchased such backup services as part of your NTS Services, NTS does not back up your data.

You shall take all measures necessary to protect your data from any loss or damage and agree to perform regularly scheduled and frequent backups of all of your data to ensure continuity of the services.  If you purchase backup services from NTS, you agree that such backup services procured through NTS are not your sole form of backup for the data. You agree to have copies of all data that you have contracted with NTS to back up as part of the NTS Services on another back up system. It is not guaranteed that the back up copies will be available by NTS as there are unknown issues that may arise preventing complete or acceptable restorations. In addition, NTS does not promise to retain any data backup(s) following termination/cancellation of this Agreement.

Upon cancellation/termination of the NTS Services, all of Your Information will be deleted immediately. Therefore, should you require a copy of Your Information, you should take steps necessary to retrieve that information prior to cancellation/termination of services. Should you fail to retrieve such information, and should you require a copy of said information after the date of cancellation/termination NTS may be able to retrieve Your Information from back-up files for an additional fee (to be determined at the time of request but could include data restoration and custom support fees). However, NTS does not guarantee that it will be able to provide you Your Information after the date of cancellation/termination.

Limitations on Access to NTS Servers

NTS may, at its sole discretion, limit or deny access to its servers, for any reason, including the blocking of certain ports and/or the denial of certain services, if, in the sole judgment of NTS, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the NTS servers.

Payment of Fees

Payment shall be made to NTS in U.S. dollars only. Payments are due upon account activation, as scheduled under any agreement providing for any future or recurring payments, including any Term Agreements (as defined below), and future account renewal, and may be made through the use of a valid credit card and, if permitted by NTS in its sole discretion, by personal/business check or money order, except that payment for products or services whose billing is based in whole or in part on consumption (“Consumable Services”), such as Cloud Virtual Private Servers, a la cart email, databases or backup services, can only be paid by credit card. All set-up fees, regardless of the type of service, must be paid in advance.  Payment for any other fees applicable to a Consumable Service (including any base fees or any variable fee based on consumption) shall be automatically charged to the credit card you have on file with NTS at the end of the monthly billing cycle in which the fees were incurred. Payment of the recurring charges for services other than Consumable Services shall be paid in advance for the term of the billing cycle you initially selected, but in any event, at least one month in advance. Billing will continue to occur automatically until you cancel the NTS Services pursuant to the procedures set forth in this Agreement. If shortfalls in payment to NTS of the full invoice amount occur due to bank fees, transfer fees, or the like, or you incur any charges for NTS Services not included in your billing cycle recurring payment, NTS will invoice you for the shortfall or additional charges on the next Monthly Billing Date (defined below), whether or not you are on a monthly billing cycle, subsequent to the date(s) in which such shortfalls occurred or such additional charges were incurred.  NTS, at its sole discretion, may discontinue, withhold, suspend or terminate NTS Services to you for failure to pay any fees other than those for Consumable Services within twenty-eight (28) days after the date on which such fees were billed and for failure to any fees for Consumable Services within (14) days after the date on which such fees were billed.

A “Term Agreement” means any NTS Services plan or agreement with NTS (whether manually signed or agreed to on-line, including via click-thru) pursuant to which you committed to procure products and services governed by this Agreement for a specified period of time equal to or greater than six (6) months. Unless otherwise provided in the Term Agreement or otherwise agreed to by NTS in writing, all payments under a Term Agreement shall be made by ACH (or credit card, if permitted in writing by NTS). Notwithstanding anything herein to the contrary, recurring payments under a Term Agreement shall be paid in accordance with the schedule set forth therein (if no schedule is set forth therein, then the monthly recurring payments shall be due and payable one month in advance on the Monthly Billing Date, and all non-recurring payments (including those for Consumable Services) shall be due and payable on the first Monthly Billing Date following the date on which such non-recurring charges were incurred.

If you have a credit card on file with NTS, the card will be automatically charged for all amounts due under this Agreement as they become due and payable.

UNLESS OTHERWISE AGREED TO BY NTS IN WRITING, INCLUDING IN A TERM AGREEMENT, ALL PRICING FOR NTS SERVICES ARE SUBJECT TO CHANGE ON AT LEAST THIRTY (30) DAYS PRIOR NOTICE FROM NTS TO YOU.  Your use of any NTS Services on or following any price change notice shall be deemed your acceptance of such price changes.

Notwithstanding anything in any other writing, publication, agreement or document to the contrary, all promotional pricing offers (including without limitation those accessed by the entry of a promotional code or otherwise identified as special or promotional pricing) expire six (6) months from the date the such promotional pricing was first applied.

Billing Cycle

For Term Agreements: The “Billing Cycle” for all Term Agreements, unless otherwise specified therein, shall commence the day the NTS Services were initially ordered under the Term Agreement and continue for one month, and each subsequent monthly Billing Cycle shall start on the same day of the respective month as the date on which the NTS Services were initially ordered (the “Monthly Billing Date”).

Not Pursuant to a Term Agreement: The “Billing Cycle” for all NTS Services not subject to a Term Agreement shall commence the day the services/plans were initially ordered and continue for one month, and each subsequent Billing Cycle shall start on the same day of the respective month as the date on which the services/plans were initially ordered (the “Monthly Billing Date”). You may elect the length of your Billing Cycle for recurring charges for NTS Services other than Consumable Services either through the applicable administrative portal (if such option is available in the portal) for products or services managed through that portal or by contacting the Billing and Account Management Department; however, any charges in addition to the recurring charges shall be invoiced on the next Monthly Billing Date immediately following the date(s) on which such additional charges were incurred.

The Monthly Billing Date for any Plan or service can only be changed upon special request, and the granting or denial of any such request will be at NTS’s sole discretion.

Notwithstanding anything herein to the contrary, NTS may make minor adjustments to any Billing Cycle at its discretion and convenience, including without limitation, for legal or accounting purposes.

Upgrades and Downgrades

Upgrades and Downgrades to NTS Services must be submitted by you within the applicable administrative control portal. Upgrades are charged a setup fee of the difference between the setup fees of the two plans (the old plan and the upgraded plan), and a prorated fee for the difference in plan prices for any time that was paid for in advance. Downgrades receive a prorated credit for any whole months paid for in advance, but no credit is given for any initial setup fees. You are responsible for, and must be aware of, what will be gained and/or what will be lost in changing plans. NTS is not responsible for lost files, data and/or information due to changes in plans.

Additional Fees

You agree that use of NTS Services hereunder will not exceed any usage limits/allocations set forth under your particular plan details. It is your responsibility to make yourself aware of all of your plan details, including any usage limits/allocations.  If you do exceed any of the specified usage limits/allocations, you agree to pay any additional fees charged therefor by NTS and/or the reseller from whom you purchased the NTS Services.

You will be responsible for the all costs incurred by NTS in collecting any amounts owed to NTS in connection with your procurement of the NTS Services, including without limitation any court (or alternative proceeding) costs, the costs of any collection agency and reasonable attorneys’ fees.

Payment Disputes

You have thirty (30) days to dispute any charge or payment processed by NTS. If you have a question concerning a charge you believe is incorrect, please contact the Billing and Account Management Department at techbilling@newtekone.com.

NTS Services Changes and Substitutions

NTS agrees to provide the NTS Services you selected, in accordance with the plan and services you selected, this Agreement and any other written agreement between you and NTS.  NTS reserves the right to substitute the NTS Services provided with equivalent or superior NTS Services, including servers, on a permanent or temporary basis, without prior notice to you.  The specifics of any particular plan are contained within the plan itself as published on the NTS Website at the time the payment for new services are received by NTS or as otherwise agreed in writing between you and NTS.

NTS reserves the right to change, amend, supply, modify, discontinue, supplement or otherwise alter any NTS Services provided upon at least thirty days prior written notice to you.

Newtek Real-Time Stats (“Real-Time Stats”)

You authorize NTS to provide real time web statistics to you through the use of an app available for mobile and/or pc devices to monitor your website traffic. This service is made available by the following: (a) Pre- installed in certain plans (if the pre-installed script, plug-in or injection is damaged by you, you can opt to have the service repaired by NTS, at its sole discretion, for a fee); (b) If you opt-in to have the current website automatically injected server- side with the java script code, NTS can run the automated injection at no additional cost; (c) You may obtain the java script code from NTS and add it to the website as desired in order to obtain access to Real-Time Stats website traffic; (d) You can request to have NTS install the code on your behalf for a fee. Newtek Technology Service cannot guarantee the results or be held liable for any corruption (downtime) to the website and/or accuracy of the stats due to making the Real-Time Stats website traffic service available for Your use.

For Dedicated Customers

You have the ability to install custom software on the server you lease from NTS as long as you have the proper licensing in place for the use of such software. In most cases, NTS will request proof of ownership and licensing of the software prior to approving the installation of the software. Should you send NTS original copies of licensing and/or software in any form (paper, compact disc, etc.), NTS shall not be held responsible for the storage and/or safekeeping of the any licensing documentation and/or software sent to NTS in any form (paper, compact disc, etc.). You shall be responsible for paying any and all postage and/or shipping fees associated with the shipment and return of all media required for the installation of software, in any form, including any insurance costs required to limit liability for damage during shipment. In addition, should you send, NTS reserves the right to review hardware device or external media that will be used to install or copy information, applications, or files to your dedicated server and the contents therein prior to addition to NTS’s network. Additionally, any attached device or external media is a temporary solution and will be removed within seven calendar days of being attached and shipped back to you at your cost. Once NTS has shipped any hardware device or external media to you that includes a copy of any requested data, you must verify within seven (7) calendar days that such data is (1) complete and includes the exact data you requested, (2) the data is accessible from the hardware device or external media, and (3) that you are able to successfully recover the data from the hardware device or external media.  After seven (7) calendar days from the time your received the returned hardware device or external media from NTS, NTS makes no guarantees that the aforementioned data can be copied or reshipped to you again at a later date. NTS further reserves the right to refuse any course of action requested by a customer (or to reverse any course of conduct already taken) that NTS determines in its sole and absolute judgment would in any way compromise its network, infrastructure, its customers or the company itself.

For Resellers Only

The following provisions apply only to persons or entities that resell NTS Services (Resellers) to persons or entities who use such products and who may or may not be listed anywhere on the account or domain registration (the End User).

If the account attributed to a Reseller’s customer is deemed abandoned, NTS may under the following circumstances deal directly with the End User. NTS will deem an End-User’s account abandoned if:

  1. Reseller has breached the terms of this Agreement with respect to the End-User account, including failure to make timely payments on the account, so that NTS would have the right to terminate the account, or Reseller fails to adequately service the account on behalf of the End User in NTS’s reasonable discretion (each, a Reseller Failure);
  2. There has been no customer administrative activity on the End-User account for a period of at least two (2) consecutive months;
  3. NTS has provided written or electronic notice to the Reseller at the most recent contact information associated with the End-User account in the applicable administrative control panel, (a) informing the Reseller that the account has had no such activity for the foregoing period of time and (b) reasonably describing the Reseller Failure(s) (the Abandon Notice); and
  4. Reseller fails to cure the Reseller Failure(s), and to provide NTS written or electronic notification that the End-User Account is not abandoned, within ten (10) days of the date of the Abandon Notice.

In the event the End User’ss account is deemed abandoned and the End User (a) requests NTS to activate an account under their ownership and (b) enters into an agreement with NTS attesting to their ownership of the information or data, including without limitation website files, database files, e-mails, e-mail accounts and related materials in the End User’s account, and agreeing to indemnify NTS for any actions taken by it in reliance on such attestation, NTS reserves the right to use such information or data to create and maintain the new account, and you, a Reseller, agree that we may do so and you will have waived any objection to the foregoing actions by NTS.

Domain Registration and Other Services

As part of the NTS Services, for additional fees NTS can assist with domain name registrations (“Domain Name”) on your behalf. NTS will not own or otherwise control any domain name registered on your behalf under this section. NTS provides this service as a convenience to you only, and you hereby waive any and all claims which you may have, or which may later arise, against NTS for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. You shall be responsible for any costs incurred by NTS to obtain and/or maintain the Domain Name on your behalf.

You are responsible for checking on the availability of any domain name associated with any of the services offered by NTS. You are also responsible for correctly entering any and all domain information (this includes, but is not limited to, the spelling of the domain, proper domain extension, etc.) during the course of ordering any services offered by NTS. NTS is not responsible for domain name availability. Domain information is entered solely by you, and is, therefore, your sole responsibility.  You shall be charged any costs associated with correcting any incorrect Domain Name.

You shall indemnify and hold harmless NTS and any of its vendors, including without limitation Melbourne IT (d.b.a. Internet Names Worldwide), and their directors, officers, employees, representatives and agents from and against any and all claims, suits, actions, other proceedings, damages, liabilities, costs and expenses of any kind, including without limitation reasonable legal fees and expenses, arising out of or relating to your .US Domain Name registration and use of any .US registered domain name. You certify that you meet the requirements to qualify to register to use a .US domain name as found on the Neustar website (Neustar oversees the .US Top Level Domain) located at http://www.neustar.us/policies/.

If you have requested Domain Name registration services, you further certify that both NTS and Internet Names Worldwide have requested specific information regarding how you meet the requirements listed above and that you have willingly volunteered such information. You understand and agree that such information will be verified and will be shared with the .US Registry. You further understand and agree that if such information cannot be verified, or if you fail to abide by the requirements listed above, the registered Domain Name shall be subject to immediate cancellation.

Upon requesting Private Registration for your domain you agree to be bound by the terms of the Master Domain Registration Agreement which may be found on the Tucows website located at https://opensrs.com/wp-content/uploads/Tucows_ExhibitA.html.  You agree to maintain your registration information in full compliance with this Agreement and the terms of the Private Registration Policy. Failure to so comply is cause for immediate suspension and/or termination.

You agree to maintain current all Whois information for your domain name. NTS will notify you when the domain registered through NTS is due to expire. NTS does not renew Domain Names automatically. You must request a renewal to renew any and all Domain Names. You are solely responsible for knowing the expiration dates required for renewal. Attempting to renew Domain Names after the expiration date are not guaranteed, and attempting to renew domain names after the expiration date may result in additional fees, whether or not such attempts to recover domain names from redemption are successful. Please note that registration, renewal, and private registration fees are not refundable.

Third Party Products and Services:

The NTS Services provided to you may include software, services and/or hardware made available by third parties (“Third Party Products or Services.”).  NTS shall not in any way be liable for the performance or operation (or lack thereof) of Third Party Products and Services and makes no warranties, representations or covenants with respect thereto.  Any and all warranties, representations or covenants regarding Third Party Products and Services, if any, are and will be governed by the terms and conditions pursuant to which the Third Party Provider makes the applicable Third Party Products and Services available to you.  In the event that NTS resells any Third Party Products and Services to Merchant, it will pass through any warranties made available to NTS by the applicable third party provider that such third party provider permits to be passed through to you.  NMS MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE THIRD PARTY PRODUCTS AND SERVICES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. THIRD PARTY PRODUCTS AND SERVICES ARE BEING PROVIDED “AS-IS” BY NTS (TO THE EXTENT EVEN BEING PROVIDED THEREBY), AND NTS DOES NOT WARRANT THAT THEY WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR FREE, OR THAT ANY ERRORS WILL BE CORRECTED.NTS

Any software provided to you as part of using the NTS Services, including licenses for products and services used on a monthly basis for a set monthly fee, are licensed to and will remain the property of NTS, even after cancellation/termination of such NTS Services.

In the event that any vendor/licensor of any software provided to you by NTS requires you to accept or agree to any terms of service or similar agreement relating to the use of such software, you must accept such terms of service/agreement prior to your use thereof, and notwithstanding the foregoing, your use of the software shall be deemed your acceptance of such terms of service/agreement.  Other than software provided to you as part of the NTS Services, you are solely responsible for any software installed or running on the server(s) made available to you as part of the NTS Services.

IF ANY MICROSOFT PRODUCTS OR SERVICES ARE MADE AVAILABLE TO YOU AS PART OF THE NTS SERVICES, YOUR USE THEREOF IS ALSO SUBJECT TO THE MICROSOFT END USER LICENSE TERMS ATTACHED HERETO AS EXHIBIT A, AND YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH THEREIN. 

Acceptable Use

NTS strictly enforces compliance with the following Acceptable Use Policy. You agree to maintain your NTS Services in full compliance with the terms set forth below. Failure to comply is cause for immediate suspension and/or termination of the NTS Services at the sole discretion of NTS.

You agree to the following:

  • You agree not to post any of the following types of content through the NTS Service, nor use your account in furtherance of any of the following: pornographic, obscene or excessively profane content, gambling, illegal drugs or illegal drug use.
  • You agree not to take any action which threatens, encourages or causes any harm to minors of any kind or to perform any activity which is likely to cause such harm or which assists any other person or group in doing so.
  • You agree not to take any action which encourages or consists of any threat of harm of any kind to any person or property or assists any other person or group in doing so.
  • You agree not use the Services to or otherwise knowingly or otherwise permit the violation any provision of the Controlling the Assault of Non- Solicited Pornography and Marketing Act (CAN-SPAM ACT) including the following:
    1. False or Misleading Header Information
    2. Deceptive Subject Lines
    3. Failure to provide an opt-out method
    4. Failure to identity the message as an advertisement
    5. Failure to include a physical Postal Address
  • You agree not to use the Services to encourage, facilitate, promote and/or include hate speech, racially offensive, ethnically offensive to groups of various sexual orientations and/or any other content or activity deemed inappropriate by NTS, at its sole discretion, for any reason whatsoever.
  • You agree not to make or attempt any unauthorized access to the NTS Services provided to you or any other NTS client.
  • You agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
  • You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express consent. You shall maintain records of any such consent so long as NTS continues to provide the NTS Services to you and for three years thereafter.
  • You agree not to undertake any action which is harmful or potentially harmful to the NTS server structure.
  • You agree that the NTS servers including that used in connection with providing the NTS Services to you is and remains the property of NTS. Your limited licenses to use the NTS Services is not subject to lease, sublease or any other sharing or transfer without the specific, express consent of NTS. You may not make the NTS Services (including but not limited to web space, email accounts, bandwidth, storage space, or reseller rights) available to any third party in any way, including but not limited to the use of Sub Domains, Add-on Domains, Sub Directories, or by any other means.
  • You agree not to utilize circular popups, multiple popups or any redirect, link or referral which creates an offensive or unpleasant user experience.
  • You agree not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise (a) any other customer of NTS (b) any reseller of NTS (c) any other person or (d) any employee or contractor of NTS.
  • You agree at all times to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the Digital Millennium Copyright Act (DMCA).
  • You agree that NTS will make the sole determination whether this policy has been violated. NTS may amend this policy at any time.
  • You agree to use the Services in full compliance with the terms of the Acceptable Use Policy. NTS reserves the right to refuse to provide service to anyone at their sole discretion, for any reason whatsoever.
  • For Dedicated Server Customers: You may not utilize, enable, upload or publicly store source code, executable code or programs on the NTS network or servers that are designed to perform the following activities including, without limitation: (a) performing local/remote security vulnerability scans, (b) simulating local shell/OS access by means of a tunneled/encapsulated connection to a remote host, (c) circumventing firewall restrictions, (d) connecting to any IRC/Peer to Peer file sharing server/network, © providing tracker services to BitTorrent clients, (f) running any kind of proxy server (including anonymous proxies), and/or (g) exploiting any other vulnerabilities, as determined by NTS in its sole discretion.

Confidential Information

As used herein, the term “Confidential Information” includes any and all of the following information of NTS that has been or may hereafter be disclosed in any form, whether in writing, orally, electronically or otherwise, or otherwise made available by observation, inspection or otherwise by NTS or its representatives (collectively, a “Disclosing Party”) to you or your representatives (collectively, a “Receiving Party”): All information that is a trade secret under applicable trade secret or other law; All information concerning product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer hardware, software and computer software and database technologies, systems, structures and architectures; All information concerning the business and affairs of the Disclosing Party (which includes historical and current financial statements, financial projections and budgets, tax returns and accountants’ materials, historical, current and projected sales, capital spending budgets and plans, business plans, strategic plans, marketing and advertising plans, publications, client and customer lists and files, contracts, the names and backgrounds of key personnel and personnel training techniques and materials, however documented), and all information obtained from review of the Disclosing Party’s documents or property or discussions with the Disclosing Party regardless of the form of the communication; and Notes, analyses, compilations, studies, summaries and other material prepared by the Receiving Party to the extent containing or based, in whole or in part, upon any information included in the foregoing.

The Receiving Party agrees that it will: (a) hold in confidence and refrain from disclosing to any other person all Confidential Information, whether written or oral, tangible or intangible, (b) take all reasonable precautions necessary to ensure that the Confidential Information is not shown, copied or disclosed to third parties, without the prior written consent of the Disclosing Party, (c) not, without the prior written consent of the Disclosing Party, release, disclose or permit the release or disclosure by its agents or representatives of any Confidential Information to anyone, or otherwise use or permit its agents or representatives to use, such Confidential Information for any purpose at any time, except to the extent permitted herein or as may be ordered by a court of competent jurisdiction, and (d) observe all written security policies implemented by the Disclosing Party from time to time with respect to the Confidential Information.  Receiving Party agrees to use the same degree of care as used for their own information of like importance, and in any event to use reasonable care, in safeguarding against disclosure of the Confidential Information. If Receiving Party is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding, such party shall, if permitted by law, provide the disclosing party with prompt notice of such request or order so that the Disclosing Party may seek to prevent such disclosure. In the event of any disclosure, the Receiving Party shall disclose only that portion of the Confidential Information that it is ordered to disclose pursuant to such legal or regulatory proceeding.

Notwithstanding the foregoing, nothing herein shall apply to that part of the Confidential Information of Disclosing Party that Receiving Party demonstrates (a) was, is or becomes generally available to the public other than as a result of a breach of this section by the Receiving Party; (b) was or is developed by the Receiving Party independently of and without reference to any Confidential Information of the Disclosing Party; or (c) was, is or becomes available to the Receiving Party on a non-confidential basis from a third party not known by the Receiving Party to be bound by a confidentiality agreement or any legal, fiduciary or other obligation restricting disclosure.

Disclosure of Information

NTS may disclose any information with respect to which it or any of its affiliates has possession, custody, control or access as a result of the procurement or use of the NTS Services (“Accessible Information”), including, but not limited to, information concerning you and/or your account, any person or entity’s use of the NTS Services, Your Information, a transmission made using NTS’s network, or a web site, in order to comply with applicable law, including without limitation the Electronic Communications Decency Act and the Digital Millennium Copyright Act, and/or legal process, including without limitation a valid court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request (compliance documents) served on NTS or one of its affiliates. The decision as to whether to disclose any Accessible Information, and whether the disclosure of such information is required or permitted under applicable law shall be at the sole discretion of NTS.  You agree that you may be charged a reasonable administrative fee for addressing and responding to any requests and/or any such issues related to you. NTS assumes no obligation to inform You that any Accessible Information relating to you and your use of the NTS Services in NTS’s or any of its affiliates’ possession, custody or control has been provided and in some cases NTS may be prohibited by law from giving such notice.

NTS may also disclose any Accessible Information where necessary to protect NTS and others from harm, or where such disclosure is necessary to the proper operation of the NTS system and/or infrastructure.

NTS provides reassignment information to the American Registry of Internet Names (“ARIN”) on all IP addresses assigned to dedicated servers (commonly known as “SWIPing” IPs, where SWIP stands for ARIN’ss Shared WHOIS Project). What this means is that your ownership information, NOT NTS, shows up on WHOIS queries against any IP address assigned to your dedicated server. The information shared with ARIN includes:

Cust-name:
Street-address-1:
Street-address-2:
City:
State:
Postal-code:
Country-code:

For more information on reporting reassignment information, including why this is required, please visit ARIN’s website (https://www.arin.net/resources/request/reassignments.html).

Information Usage and Communications

During and after the term of this Agreement you agree to receive periodic emails from NTS and/or its affiliates in regards to NTS, its affiliates or any of their or any of their partners’ products or services, your account and system conditions, changes, updates and/or schedules.

You agree to provide, and at all times during the term of this Agreement maintain, true and accurate account information on file with NTS specifically including your Name, Address, Email address, telephone number and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of this Agreement and subjects your account to suspension and/or termination by NTS.

Cancellation, Suspension and Termination

Cancellation:  Cancellations of service must be made via telephone (Toll-Free at 877.323.4678, International at 602.263.0300, and select the Billing and Account Management extension) or via chat, and will not be made without first verifying your correct Customer/User ID (provided by NTS) and account PIN (created by you); provided, however, that NTS, may, under certain circumstances and in its sole and absolute discretion, permit alternative forms of account verification if you are unable to produce the correct Customer/User ID and related PIN.  You may cancel any NTS Services not covered under a Term Agreement at any time.  Any such cancellation will take effect immediately, and you will be charged a cancellation fee equal to the amount of any remaining whole months of services for which you have prepaid (it being understood that there are no refunds for the balance of the month in which you cancel the services).  You are obligated to pay all payments due under a Term Agreement for the entire term of the Term Agreement regardless of whether you cancel the NTS Services covered thereby prior to the expiration of the term.  In the event you do cancel the Term Agreement or the NTS Services covered thereby prior to the expiration of the term of the Term Agreement, all future payments due thereunder shall be accelerated and become due within fifteen (15) days of the date on which the Term Agreement or NTS Services covered thereby were canceled.  Upon any cancellation, your domain name will remain registered for the remainder of the then-current term (including to the end of the term covered by a Term Agreement), but will cease working with your email and pointing to your cancelled website.  NTS is not responsible for your failure to use the NTS Services. You have the right to cancel the services/plans that you have purchased at any time. Therefore, non-use of the services/plans offered DOES NOT constitute a cancellation of said services/plans

Suspension:  At the sole option of NTS for any reason set forth herein or in the event that you breach any term of this Agreement, including but not limited to any violation of the NTS Acceptable Use Policy, NTS may suspend providing the NTS Services to you by deactivating any access by you and/or by web users to such NTS Services while maintaining your Information upon the NTS servers. Suspension shall specifically include disabling access to Your Information. NTS may, at its sole discretion, provide you with notification of such suspension. At NTS’s sole discretion, NTS may provide you with an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated by NTS. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any period of suspension. Should any account require suspension, NTS will retain the right to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys’ fees or other costs of any kind to the maximum extent permitted by applicable law.  In the event your account is suspended as a result of a failure to timely pay for the NTS Services, NTS may, at its sole and absolute discretion, unsuspend your account after it receives payment in full of all amounts outstanding under the account, including without limitation any and all late fees.

Termination: NTS may also, in its discretion, terminate your right to receive some or all of the NTS Services being provided to you effectively immediately (or such later time as NTS may elect to provide in its sole discretion) upon any breach by you of any term of this Agreement, including but not limited to any violation of the NTS Acceptable Use Policy, or as otherwise permitted by NTS under this Agreement.  NTS will use reasonable efforts to give you reasonable notice of such termination (taking into account the circumstances and reasons for the termination).   Should any account require termination, NTS will retain the right to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or other costs of any kind to the maximum extent permitted by applicable law.

Effect of Termination/Cancellation:   Upon termination/cancellation, NTS will cut off your NTS Services and delete Your Information immediately. Accordingly, Your Information may be lost forever, and NTS accepts absolutely no liability for the deletion of Your Information upon or any termination/cancellation of the NTS Services. It is your sole responsibility to maintain a back-up of all of Your Information at all times, even if you have contracted with NTS to maintain an additional back-up of Your Information.  Therefore, should you require a copy of Your Information, you should take steps necessary to retrieve that information prior to cancellation/termination of the NTS Services.  Should you fail to maintain a back-up of Your Information or retrieve a copy of Your Information prior to cancellation/termination, NTS MAY be able to, but shall have absolutely no obligations to, retrieve some or all of Your Information from back-up files for an additional fee (to be determined at the time of request but could include data restoration and custom support fees) for a period of fourteen (14) days following the termination/cancellation date. However, NTS does not guarantee that it will be able to provide you any of Your Information after cancellation/termination of the NTS Services.

Notice

Any notice under this Agreement shall be given by NTS to you via email at the address provided to NTS at the commencement of this Agreement or as NTS is subsequently advised, either by you directly or by any reseller from whom you have procured the NTS Services. Notice to you at this address is deemed sufficient regardless of your receipt of such email.

Any notice by you to NTS shall be made in writing and sent via United States Mail to the following Address:

Newtek Technology Solutions
1981 Marcus Avenue Suite 130
Lake Success, NY 11042 USA

Infringement Policy

NTS, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (“DMCA” or the “Act”), reserves the right to terminate your account and/or make one or more pages of any website you may operate through the NTS Services unavailable, if NTS determines, in its sole discretion, that you are or may be involved in infringing activity, including alleged acts of first-time or repeat infringement, or it receives notice, which in NTS’s sole opinion, it believe conforms with the requirements of the DMCA, alleging that your use of the NTS Services is violating the intellectual property rights of any other person or entity infringement activity, in each case regardless of whether the material or activity is ultimately determined to be infringing.

(2) Digital Millenium Copyright Act Compliance

1. Written Notification Policy for Claimed Infringement Pursuant to 17 U.S.C. Section 512(c), NTS has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. All claims of infringement must be submitted to NTS in a written complaint that complies with the requirements below and is delivered to our designated agent to receive notification of claimed infringement as follows:

By mail (by certified mail, return receipt requested or reputable overnight courier):

Newtek Technology Solutions, Inc.
Attn: Chief Legal Officer
1981 Marcus Avenue Suite 130
Lake Success, NY 11042 USA

With a copy to: techlegal@newtekone.com

Additionally, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed.
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.
  3. Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
  4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or electronic mail address.
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law.
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.

(2) Actions Taken By NTS Upon Receipt of Notification of Claimed Infringement Upon receipt of written notification containing the above information from the Complainant, and only upon receiving such notice, NTS will:

  1. Remove or disable access to the infringing material(s) immediately or within a reasonable time frame.
  2. Take reasonable steps to contact you and inform you that the material(s) in question has been removed or disabled.

In response, the person receiving the complaint may send a written counter notification (by fax or regular mail, email only through prior arrangement) to NTS™ designated agent. The counter notification must include the following:

  1. A physical or electronic signature by the person countering the claim.
  2. Identification of the material(s) that have been removed or to which access has been disabled and the location at which the material(s) appeared before it was removed or access to it was disabled.
  3. A statement, under penalty of perjury, that states the person countering the claim has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  4. The name, address and telephone number of the person countering the claim, and a statement that They consent to the jurisdiction of Federal District Court in which this address is located. If the address of the person countering the claim is outside of the United States, that person shall consent to the judicial district of NTS™ principal place of business, and that person will accept service of process from the Complainant who provided the original notification or an agent of such person.

Upon receipt of the written counter notification containing the above information from the person countering the claim, and only upon receiving such notice, NTS will:

  1. Provide the Complainant with a copy of the counter notification.
  2. Inform the Complainant that NTS will replace the removed material or cease disabling access to it in 10 business days.
  3. Replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless NTS™ designated agent receives notice from Complainant that an action has been filed, seeking a court order to restrain the complainee from engaging in infringing activity relating to the material referenced in the original notification.

Warranties and Limitations

NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR ANY OTHER DOCUMENT, INSTRUMENT, MATERIAL OR AGREEMENT TO THE CONTRARY, THE NTS SERVICES AND ANY OTHER PRODUCT OR SERVICE PROVIDED TO YOU BY NTS OR ANY OF ITS AFFILIATES FOR USE IN CONJUNCTION THEREWITH ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

In general, NTS has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. NTS accepts no responsibility for any information that you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. NTS provides no warrantee for any goods or services that you obtain over the Internet nor the compatibility of any such services with the NTS system.

You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.

THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE BY NTS, ITS AFFILIATES OR ITS VENDORS SHALL BE FOR NTS TO USE COMMERCIALLY REASONABLE EFFORTS TO RE-PERFORM OR CORRECT THE NTS SERVICES ADVERSELY AFFECTED BY SUCH BREACH, NEGLIGENCE, ACTION OR FAILURE TO ACT. IN NO EVENT SHALL NTS (A) BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF BUSINESS AS THE RESULT OF SUCH BREACH, NEGLIGENCE, ACTION OR FAILURE TO ACT WITHOUT REGARD TO WHETHER YOU INFORMED NTS OR NTS KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF ANY SUCH DAMAGES OR (B) BE LIABLE UNDER ON IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, IN AN AMOUNT TO EXCEED THE AMOUNT OF FEES PAID BY YOU TO NTS FOR THE NTS SERVICES TO WHICH THE CLAIM RELATES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM IN THE AGGREGATE FOR ALL CLAIMS ASSERTED UNDER OR IN CONNECTION WITH THIS AGREEMENT.

Indemnity

You agree to fully defend and indemnify and hold harmless NTS and its affiliates of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach by you of the terms of this Agreement, any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the NTS service or any portion thereof, or your use of the NTS Services. Choice of counsel remains exclusively that of NTS.

Force Majeure

NTS shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of NTS shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

Assignment

Your rights and obligations under this Agreement may be assigned only upon prior written notice and express written approval by NTS. NTS may assign its rights and obligations hereunder without your consent by delivering notice to you of such assignment in accordance with the notice provisions of this Agreement. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.

Severability

If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

Choice of Law; Jurisdiction; Waiver of Trial by Jury

This Agreement shall be interpreted under the laws of the State of New York without regard to its conflicts of law provisions. Any action between the parties to this Agreement for the breach of this Agreement or any action or claim in any way relating thereto shall be venued exclusively in the state or federal courts located in New York County, New York. The parties to this Agreement hereby consent to personal jurisdiction in such courts, agree that such courts are convenient forums, agree to accept service by mail and hereby waive any defense of any kind related to personal jurisdiction or venue.

TO THE EXTENT PERMITTED BY LAW, THE PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL BY JURY IN THE RESOLUTION OF ANY DISPUTE BETWEEN THEM WITH RESPECT TO THIS AGREEMENT OR THE NTS SERVICES.

No Agency

Notwithstanding any other provision of this agreement, NTS is not your agent, partner or joienturerer in any respect.

Amendment

NTS may without advance notice amend this Agreement from time to time, and will do so by making the new Agreement available to you through delivery to the then current contact information NTS has available for you (including without limitation through the applicable administrative control portal (or other similar type of portal/interface made available to you by NTS), via email or any combination of the foregoing) or through delivery to the reseller from you have procured the NTS Services with instructions from NTS to deliver a copy thereof to you.  Every such amendment shall be become effective immediately for all pre-existing and future accounts.

Entire Agreement

This Agreement including all exhibits hereto represents the entire agreement among the parties with respect to the subject matter hereof, and all prior agree­ments or understandings relating to the subject matter hereof, whether written or oral, are nullified and superseded hereby.  This Agreement supersedes any additional Agreements that you or NTS may have with any other vendor, and for the avoidance of doubt; any agreements you may have with another person or entity, including without limitation any reseller of the NTS Services or vendor, shall be exclusively between you and such other person or entity.

 

EXHIBIT A

MICROSOFT END USER LICENSE TERMS

TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE

This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “MS Products”) provided by NTS.  NTS does not own the MS Products and the use thereof is subject to certain rights and limitations of which NTS must inform you. Your right to use the MS Products is subject to the terms of your agreement with NTS, and to your understanding of, compliance with, and consent to the following terms and conditions, which NTS does not have authority to vary, alter, or amend.

1.         DEFINITIONS.

“Client Software” means software that is installed on a Device that allows the Device to access or utilize the MS Products.

“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.

“End User” means an individual or legal entity that obtains Software Services directly from NTS, or indirectly through a Software Services Reseller.

“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.

“Software Services” means services that NTS provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the MS Products. NTS must provide these services from data centers) through the internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not NTS receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the MS Product.

2.         OWNERSHIP OF MS PRODUCTS. The MS Products are licensed to NTS from an affiliate of the Microsoft Corporation (collectively “Microsoft”). MS Products are protected by copyright and other intellectual property rights.  MS Products and other MS Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the MS Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the MS Products.  The MS Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  Your possession, access, or use of the MS Products does not transfer any ownership of the MS Products or any intellectual property rights to you.

3.         USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with NTS and the terms under this document, and only in connection with the Software Services, provided to you by NTS. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.

4.         USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by NTS, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution   Software”), You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with NTS and this document and/or your agreement with NTS.

5.         COPIES. You may not make any copies of the MS Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by NTS; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with NTS, upon notice from NTS or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the MS Products.

6.         LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.  You may not reverse engineer, decompile, or disassemble the MS Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.

7.         NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the MS Products to any third party, and may not permit any third party to have access to and/or use the functionality of the MS Products except for the sole purpose of accessing the functionality of the MS Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and NTS.

8.         TERMINATION. Without prejudice to any other rights, NTS may terminate your rights to use the MS Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with NTS or NTS’s agreement with Microsoft under which the MS Products are licensed, you must stop using and/or accessing the MS Products, and destroy all copies of the MS Products and all of their component parts within thirty (30) days of the termination of your agreement with NTS.

9.         NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by NTS (if at all, and solely as explicitly set forth in and in accordance with this Agreement) and not by Microsoft, its affiliates or subsidiaries.

10.       PRODUCT SUPPORT. Any support for the Software Services is provided to you by NTS or a third party on NTS’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.

11.       NOT FAULT TOLERANT. The MS Products are not fault- tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the MS Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).  You agree to indemnify and hold harmless Microsoft and NTS from any third-party claim arising out of your use of the Products in connection with any High Risk Use.

12.       EXPORT RESTRICTIONS.   The MS Products are subject to U.S. export jurisdiction.   NTS must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

13.       LIABILITY FOR BREACH. In addition to any liability you may have to NTS, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.

14.       INFORMATION DISCLOSURE. You must permit NTS to disclose any information requested by Microsoft under the NTS’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with NTS, with the right to enforce provisions of your agreement   with NTS and to verify your compliance.