TERMS & CONDITIONS OF 01.COM, Inc. SERVICES:

TERMS & CONDITIONS OF 01.COM CLOUD HOSTING SERVICES

01.com ("01.com, Inc.", "01 COM INC", "01 COM", "Us" and "We") is an independent contractor providing technology services, and certain software licensing to organizations ("Customer(s)", "Client(s)" or "You") remotely across computer and telephone networks, and in person ("on-premise"). Service(s) is provided periodically, or on a one-time basis at mutually agreed upon pricing. This Agreement only applies to services provided within the 01.com Zimbra and Blackberry shared hosting environments.

DEFINITIONS

"Blacklist" means a list of computers or internet domains that have been identified as distributors of SPAM or viruses.

"Cloud" means a system of computer servers, networking and storage devices located in a specialized data center environment for the purpose of delivering Service to many Clients simultaneously. "Cloud hosting" and "shared hosting" are used interchangeably.

"Mailbox" means the file or directory on the 01.com mail Server where the email messages are delivered and stored for any one user and email recipient. Mailboxes are checked periodically by users using the web and supported mobile devices and email clients such as Outlook or Mac Mail.

“Network Software” means the Zimbra proprietary software applications provided by Zimbra the company to 01.com. 01.com only provides the top-of-the-line Network Professional Edition and its associated software, including access to the Zimbra Collaboration Suite Server, and its client software such as and not limited to the .PST import tool, the Outlook Connector, and the Mac iSync Connector.

“Network Source Code” means those closed source network components of the Network Software that Zimbra the company provides to 01.com for use by it's customers, in human-readable format, exclusive of the Open Source Software, the open source version of the Zimbra software licensed under Zimbra the company's or Yahoo!'s Public License or an OSI approved license.

"Priority" means the urgency of Customer requests, as defined in good faith by Customers when submitting an issue via the online Help Desk's ticketing system. The company attempts to respond to requests as they occur, with the Priority indicating the severity of the issue. Critical = company wide problem: respond within 1 hour. Emergency = company wide slow down: respond within 4 hours. Urgent = a person's work is stopped, or a group is slowed: respond within 8 hours. High = 1 person's work is slowed: respond within 24 hours. Medium = respond within 2 days. Low = respond within 5 days.

"RBL" means Real time Blacklist. 01.com subscribes to various RBLs maintained by organizations who serve to identify sources of SPAM, viruses, and other network attacks on and from the internet, and up-date lists of these sources in real-time.

"Response" is defined as acknowledgement by e-mail, ticketing system or telephone of an open ticket only to the Help Desk department. 01.com makes efforts to prioritize responses by first-come, first-served, and by priority.

"RFC" means Request for Comments, a memorandum published by the Internet Engineering Task Force (IETF) describing methods, behaviors, research, or innovations about how the Internet works. Engineers and computer scientists publish discourse as RFCs, either for peer review or to introduce concepts and information. The IETF adopts some RFCs as Internet standards.

"Server" means a 01.com computer or program on a physical computer used to deliver Service.

"Service" or "Services" means the Supported Software and Hosting Services, Licensing and Support collectively.

"SPF" means Send Policy Framework, an extension to the Simple Mail Transfer Protocol (SMTP) for sending email. SPF allows the owner of an Internet domain to use special record in their domain name server (DNS) information to specify server computers authorized to transmit e-mail for that domain. For example, the owner of the mydomain.org domain can designate which machines are authorized to send e-mail whose sender e-mail address ends with "@mydomain.org". 01.com has published instructions on how to correctly setup an SPF record for your domain.

"Supplemental Service" means any service we provide to you other than the Supported Software and Hosting Services and Systems Administration, only under additional agreements. Examples of Supplemental Service include and are not limited to Dedicated Hosting, Remote Maintenance/Server Care, and Programming. All Supplemental Services are performed on an "AS IS, AS AVAILABLE" basis.

"Support" means (i) management of the Supported Software and Devices by a service delivery team that includes help desk support specialists with training and experience, (ii) availability of live support twenty four hours per day, seven days per week, year round; and (iii) use of the 01.com online help desk, website and account manager. Support is available to everyone with a 01.com shared hosting mailbox.

“Supported Software and Devices” means software and devices supported in general release (GA) by Zimbra the company.

"Systems Administration" means support provided by 01.com senior technical support team, including systems administrators, engineers and programmers. Requests for Systems Administration are handled based on a Priority and first-come, first served basis. For the shared hosting environment, the senior technical support team is available for scheduled maintenance and on-call for systems-wide emergencies only outside of 9AM-6 PM CST, 7 days a week.

"Zimbra" means the software The Zimbra Collaboration Suite produced by the company called Zimbra ("the company Zimbra" or "Zimbra the company"), a Yahoo! company.

SERVICES ("SERVICE")

Term: These Terms & Conditions of 01.com Services ("our agreement," "services agreement", "agreement", and "agreement.html") may be canceled at any time with 30 days notice by either 01.com in writing (you agree email is acceptable) or by you using the Billing Manager (http://billing.01.com). Renewal takes place automatically at the end of your Term of service unless you or 01.com cancel the Agreement. Term of service for our Shared Hosting environment is month-to-month ("monthly") or if available, prepaid annually ("annual" or "yearly"). If the annual Term is offered by 01.com for your particular Service, you may select annual Term upon order or thereafter use the Billing Manager to change ("upgrade") the Term from month-to-month to annual. New services you may add during an annual Term will automatically be charged at the next monthly billing cycle, and prorated to the anniversary of your Term. Once you have selected an annual Term either upon order or upgrade, you may not change the Term again. The obligations to maintain the confidentiality of the Confidential Information shall continue for one (1) year after the end of the Agreement and shall be in addition to any subsequent confidentiality provisions agreed to by the parties pursuant to any subsequent agreement.
Privacy: 01.com will treat any and all information it acquires in order to access Customer computer systems and network, including but not limited to passwords, IP addresses, and access codes, as Confidential Information. 01.com shall not disclose any such Confidential Information to any third parties, except as may be necessary to assist 01.com in providing the technology services to Customer, in anti-fraud detection and payment processing, in response to a subpoena, in response to suspected abuse or other unlawful use, or for the purpose of backups, virus scans or spam filtering. Any Confidential Information shall be returned to the Customer immediately upon request. 01.com will not access Customer's hosted email, contacts, calendars or documents except for trouble-shooting purposes, in response to a subpoena issued by a court, in response to suspected abuse or other unlawful use, or for purposes of backups, virus scans or spam filtering. See: Privacy Policy (http://www.01.com/privacy.html).
Satisfaction Guarantee: The first 30 days of service is free-of-charge ("Free Trial Period"). You may cancel your services these first 30 days without further obligation; after 30 days, the entirety of service fees once collected are non-refundable. We appreciate the opportunity to remedy any service problems you may experience quickly and at no additional cost if you warn us in writing that such problem(s) will lead you to cancel your agreement with us, and provide us 30 days to cure such problem(s). Furthermore, in the event you remain unsatisfied after providing 01.com reasonable opportunity to remedy your service per the terms of this Agreement, within 10 days of your written request in a help desk ticket, at a cost of no more than $10/account plus applicable shipping if any, 01.com will make back up data of your information available to you on disk or across the internet to help you restore your information to another Zimbra server or provider.
Customer Age and Information: Customer is 18 years of age or older, and agrees that all forms, documents and information have been completed by Customer, and the information provided is to the best of customer's knowledge correct, and that 01.com may rely on Customer supplied information in performing the services, term and conditions of this Agreement and Attachment(s) and respective service schedules. Any materially incorrect data provided to 01.com may cause a delay in services and additional labor, resulting in additional charges and fees.
Minimum System Requirements:
1. All computers must have a minimum of 5GB of available hard disk space and 512 MB of RAM
2. Applicable password(s) must be available in the event remote control support is requested and deliverable
3. For iCal/AddressBook synchronization: Macintosh OS 10.4 operating system or greater
4. Microsoft Windows XP SP2 or greater
5. For Outlook synchronization: Outlook 2003 or 2007
6. For accessing the secure Zimbra Administrator web interface: Firefox

Other Operating systems may be supported, please contact us for more info. It is assumed broadband services are installed, adequate and operational prior to the time of service, including connections to any broadband router or modem. It is also assumed you are not using traffic shaping or other firewalling or security techniques that may negatively impact Service performance. You understand the older your computers and operating system, and slower your broadband connection, the longer it will take for Service, and for 01.com to perform technical support for you. We recommend the free Firefox web browser for all operating systems.

Not for resale: our services are not intended to provide more than the direct support needs of the number of people ("mailboxes") for which service is purchased. Our services may only be resold with written approval from a 01.com executive under the terms outlined in our online Reseller Portal (http://reseller.01.com) and formalized by our Reseller Agreement (http://www.01.com/affiliateagreement.html).
Pricing: is in US dollars unless otherwise specified and can be found on the 01.com website, by periodic emailed analysis of your account, or in a proposal for services from a 01.com representative. Prices do not include taxes, if any. Customer agrees to pay or reimburse 01.com for any and all applicable taxes. For Shared Hosting Services, see Pricing (http://www.01.com/pricing.html).
Free Trial Period: upon ordering, Customer will be both charged $1.00 (US) and refunded $1.00 (US) to validate your chosen form of Payment. Because it happens almost immediately, this validation will not show up on your credit card statement. The Free Trial Period lasts 30 consecutive days, including weekends and holidays. During the Free Trial Period, you are considered a Customer by 01.com and will receive Service normally, and while you may receive a report by email called a Courtesy Analysis, you will not be charged for Service until after the Free Trial Period. After the Free Trial Period, if you have selected Service with a monthly Term, your first invoice will include the prorated time period between the end of your Free Trial Period and the beginning of the following, first month of paid Service, in addition to the first month of paid Service and your one-time setup or activation fees, as applicable. If you have selected service with an annual Term, your service start date for annual billing purposes will be the first of the month following the end of your Free Trial Period.
Fraud Protection: For the protection of our customers, 01.com uses various automatic systems to record transactions, and orders, and to detect and prevent prospective fraud and probable violators of our Acceptable Use, such as and not limited to people using stolen credit cards to sign up for service and try to send out spam. You understand we use these systems for your protection, and if you are having difficulty signing up for services, it is likely you have been identified by our fraud protection systems. Please call our Billing department directly for assistance, they will verify your information, and sign you up manually for service: 888-663-3250 x5.
Email Throttling: For the protection of our customers, 01.com throttles outbound email to help prevent abuse. We do not publish parameters of this system to further discourage abuse. You may request an increase for an individual mailbox, or for all mailboxes in a domain, using our web ticketing system, and we will raise this limit to accommodate your business within a business day.
RBLs and Internet Standards: 01.com subscribes to various RBLs, and requires that mail servers conform to generally accepted standards as recognized by published Requests for Comments (RFCs). You understand we use these systems and policies for your protection, and that they sometimes will result in the outright rejection of some inbound email. If you suspect you are not receiving email from a specific individual or group, please verify the issue by duplicating it, request we investigate the issue, using our web ticketing system, and including the full header information of email not reaching your mailbox(es), by having the mail cc:'d to another account at which you can receive the mail, or by faxing it to us (contact us for the fax number please).
Help Desk Support: 01.com is in the business of making attempts to diagnose computer problems and deliver basic computer trouble-shooting over the telephone and internet only for the purposes of supporting our paid services such as and not limited to Zimbra hosting. The 01.com Help Desk scope of support includes
1. Emergency response based on the priority you assign to tickets (from within 1 hour to 48 hours or more)
2. Trouble-shooting and diagnostics of client-side issues in the Zimbra web client (we recommend Firefox)
3. Trouble-shooting and diagnostics of client-side issues in supported mail clients
  1. Outlook 2003/2007, Eudora or Thunderbird under Windows XP or Vista
  2. Mac Mail, Eudora or Thunderbird under Mac OS 10.4 or 10.5
4. Occasional remote control and screen sharing sessions to expedite trouble-shooting
5. Trouble-shooting and diagnostics of client-side issues with Zimbra sync connectors
6. Trouble-shooting and diagnostics of mobile device issues
7. Identification of the optimal resources to solve issues, such as knowledgebase articles
8. Zimbra bug identification and submission: http://bugzilla.zimbra.com
9. Escalation to Systems Administration, Billing and Sales departments as needed

01.com does not represent the company Zimbra, Yahoo!, RIM, nor any other computer software, hardware or services firm. Help Desk Support may not be completed or even possible because of a problem with your computer, its configuration, network, internet or the software that is beyond our control. In such event we do not resolve your problem to your exclusive satisfaction, we will communicate alternatives that may include recommendations for optional Services. We may also recommend third-party services for whose performance you agree we are not in any way liable, for example and not limited to the service that may be due and delivered by computer manufacturers such as and not limited to the company Zimbra, Apple, HP, IBM, Microsoft or Dell. If we determine and you agree you need more help than the Help Desk Support provides ("Out-of-scope Service"), such as and not limited to the case of any training, lessons, advocacy, expert advice or any service requiring remote control of your system, we may ask you to pay for Supplemental Services.

Out-of-scope Service: Desktop or operating system support, end-user training delivered to more than 2 people simultaneously, programming, senior technicians and advanced technology services, as determined by 01.com's at 01.com's sole discretion, will be delivered as Supplemental Services, mutually agreed on by Customer and 01.com in writing and in advance of Service. Cumulative, additional charges for Hourly work may apply for rapid response ("Emergency") services, requests for specific, senior or multiple technicians, on-premise services and service outside of standard service hours and days, as agreed upon in writing prior to service.
Service Requests: 01.com makes commercially reasonable efforts to make Help Desk Support available by means of toll-free phone, currently available in 20 countries, instant messaging and the preferred means of contact: the secure web Help Desk ("Help Desk"). 01.com maintains a Help Desk (http://helpdesk.01.com) Ticketing System that enables customers to login using their email addresses and email passwords, and to describe and prioritize issues, ranging from, for example, "Low" to "Critical" priority. Contact with 01.com personnel may not be recorded beyond what is documented in the Ticketing System. Requests for Service are accepted 24/7, every day, through the Ticketing System. The tickets generated by the Ticketing System are available through the Ticketing History section of the Help Desk for the life of this Agreement. 01.com makes best efforts to respond to higher priority tickets sooner than lower priority tickets. For transparency, tracking and continuity purposes, Customers are expected to use the Ticketing System whenever practical, and to describe specifically and prioritize service requests reasonably accurately, per Acceptable Use, Section 14. Response to Service Requests is provided on a first come, first served basis, and in the case of simultaneous requests for Service, Customers are prioritized by their ticket priority. 01.com makes reasonable efforts to prioritize in-bound requests for service from Customers with the same, or similar ticket priorities. To help improve our availability to meet your needs, service requiring senior or specific 01.com technicians should be scheduled a minimum of 5 days in advance.
Undelete and data restoration: 01.com makes commercially reasonable efforts to make and verify nightly incremental, and weekly full backups of all your data stored on the 01.com servers, and to keep these backups for 30 days. You may use the Ticketing System to request we restore an individual mailbox to any date and time in 29 days immediately prior to your request, and we will restore the mailbox under a different name, for your convenience. Please allow 24 hours for processing of undelete requests.
Security and monitoring: 01.com makes commercially reasonable efforts to enable the secure transfer of data such as and not limited to email to and from its Servers by using public SSL certificates to offer 256-bit SSL encryption of network services, including SMTP (outbound mail), POP (inbound mail), IMAP (inbound mail and synchronization), LDAP (directory services) and HTTP (web mail, mobile and desktop synchronization). We make commercially reasonable efforts to secure the servers physically by highly restricting and securing server administration, and placing the servers in data centers monitored 24/7 by live security guards, video surveillance, palm print, security code access and individually locked cabinets. The 01.com Servers are monitored in 5 minute increments over the internet externally from London, New York City, San Francisco and Chicago, with reports available 24/7 via our public Systems Status page, located at http://watcher.01.com.
Hosting services maintenance: 01.com's regularly scheduled maintenance may occur on Saturday nights, from 10PM until 10AM on Sunday mornings, USA Central time. 01.com shall attempt to notify and coordinate with Customers a minimum of 4 days in advance and no less than twenty-four (24) hours in advance of all non-emergency maintenance. By e-mail, or RSS newsfeed ("News") in 01.com's Help Desk, 01.com shall advise Customer of the expected duration of the maintenance window and the impact of the work to be performed. No further notice of maintenance windows may be provided to Customer. 01.com shall not provide any applicable credits for work stoppage or service outages necessary to provide scheduled maintenance. 01.com makes commercially reasonable efforts to schedule maintenance no more than once a month at times most convenient for the majority of those customers affected. 01.com may schedule maintenance as often as is deemed necessary to maintain system reliability and integrity, at 01.com's sole discretion.
Service value: You understand and agree by signing up for Service, you receive material value, equating to no less than the full Service's entire purchase price, from setup of, access to, and reservation of the Services from 01.com, regardless of your actual use ("usage") of any of the Services.
Acceptable/Fair Use & Monitoring: 01.com has set no fixed upper limit on the amount of emails, bandwidth, telephone or online support requests you may make annually. However, 01.com has based its service commitment and pricing based upon reasonable use expectations of the average Customer (collectively referred to as "Acceptable Use"). 01.com reserves the right to monitor and record the nature and amount of Service requested by each Customer. Should 01.com conclude at its sole discretion that Customer is requiring Service in amounts greater than reasonably expected, or if 01.com believes that Customer is using the Service for resale, sending unsolicited email (spam) or viruses, or other fraudulent uses, or has used profanity or otherwise abused a 01.com team member, partner, affiliate or another 01.com customer, or has allowed any non-customer to use Customer's account to receive support services, or has published an incorrect SPF record, 01.com may immediately terminate this Agreement. Should 01.com decide to terminate this Agreement for the reasons set forth above, 01.com will notify Customer by email or telephone. Customer then within three (3) days of receiving the termination notice, may set forth reasons why termination is not warranted. 01.com will consider Customer's objections and thereafter render its decision. Any decision not to terminate Customer's account does not preclude 01.com from terminating Customer's account at a later date should a violation of this Acceptable Use policy occur or other reasons set forth in this Agreement.
Non-hire: during the term of this agreement and for a period of 24 months following any 01.com service to you, you and 01.com agree that neither party shall directly or indirectly hire, solicit, or encourage to leave the other party's employment, any employee, consultant or contractor of the other party, or hire any such employee, consultant or contractor who has left the other party's employment or contractual engagement. The parties acknowledge that either party's breach of this provision cannot be reasonably or adequately compensated by damages in any action at law, and said breach of this provision of this Agreement will cause the damaged party irreparable injury and damage. The parties expressly agree that the damaged party shall be entitled to injunctive and other equitable relief in the event of, or to prevent, the other party's breach of this provision of this Agreement. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the damaged party may have for damages or otherwise. The various rights and remedies of the damaged party under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.
Payments: periodically in advance, and in the case of Supplemental services, expected prepaid or in the case of emergencies, in full and promptly after service. Credit card, e-check and paypal payments may be made securely through the 01.com Billing Manager, or by phone with 01.com. Cash payments are not accepted without management's written approval. You agree to report of any payments outside these terms at your earliest opportunity, and report of such activity may entitle you to waived service charges: billing (at) 01.com, subject: payments. A late charge fee of 1.5% per month or the maximum interest allowable by law, whichever is lower, shall apply to any late payments made by you to 01.com. Customer is responsible for all non-recurring and recurring charges after Service is activated. You may update billing information online using the 01.com online Billing Manager. By sending an email to the contact listed by you in the Billing Manager ("Contact Email Address"), 01.com will automatically attempt to warn you three times over an approximately two week period if your credit card has expired or is declined. You acknowledge that all orders may be immediately suspended or terminated ("Interruption") at 01.com's sole discretion if any charges made by 01.com to you are declined or charge backs are claimed against any outstanding invoiced amount. Such Interruption does not relieve you from the obligation to pay Service charges. Disputes to amounts invoiced and changes should promptly be reported to the Billing department using the Help Desk, or to billing (at) 01.com.
Credit Cards: When you choose to provide your credit card information above, you agree that we may bill you for amounts due for 01.com services periodically, without your further approval, until Service is cancelled by you or 01.com. Payments for Service once made are non-refundable, and you affirmatively agree not to request any refund from your credit card company. You agree that all information provided is up-to-date, accurate and complete, including and not limited to your Contact Email Address. Payments over $1000 at any one time, or in any one payment period on American Express may be subject to a 5% transaction service fee.
Change orders. To change your order, please login to your Zimbra Admin (https://zimbraadmin.01.com), where you may add/delete mailboxes, change quotas, etc. You may change your contact information and as applicable, Terms online Billing Manager (http://billing.01.com). While you may of course contact us for assistance, where service can be changed independently by you, 01.com will only instruct you how to make changes yourself. Where available, monthly terms may be upgraded to annual terms using the Billing Manager. Once chosen by you, annual terms may not be changed to monthly terms and you are not entitled to another Free Trial Period. One-time, setup fees, if any are due for your Term of service, are applicable each time you make a net-addition to a resource such as and not limited to the number of mailboxes in any given calendar month. If you add mailboxes during an annual Term, you will automatically be charged a pro-rated amount for those new mailboxes at the beginning of the calendar month following your addition(s).
Renewal. Your account will renew automatically at the then current, same periodic rates and plan, unless we terminate it, or you terminate it prior to the end of your Service period term. Hosting services may not be canceled by email, you may only cancel your hosting services yourself by using the Billing Manager. There is a knowledgebase article in our online help desk entitled "How to cancel service" that has illustrated instructions if you need guidance. You must cancel your membership before it renews in order to avoid non-refundable billing of Service fees for the renewal term to your credit card or other automated form of Payment.
Service Level Agreement (SLA): Our Service Level Agreement ("SLA" http://www.01.com/sla.html) for shared hosting Service is available on the 01.com website. 01.com reserves the right to amend the SLA from time to time, effective immediately upon notice via our RSS News feed. The SLA sets forth Customer's sole remedies for any claim relating to this service or the 01.com services, including any failure to meet any guarantee set forth in the SLA.
Change of Service: 01.com retains the right to change Fees and Charges hereunder if required to by regulation, statute or rule of any governmental entity or applicable rule of law. 01.com shall provide prompt written notification via RSS News of any such increase. All products and services provided by 01.com are subject to its business policies, practices, and procedures, which 01.com may change at any time and from time to time in its sole discretion without notice to Customer. 01.com will make commercially reasonable efforts to provide thirty (30) days written notice in the event of a material change. If any changes adversely affect Customer's rates or services in a material way, Customer's right to terminate this agreement is Customer's only remedy. If Customer chooses to continue to use 01.com products or services after receiving notice of any changes, those changes will apply to Customer after the date it receives the notice and will be reflected in the next billing period.
Intellectual Property: Except as otherwise expressly provided herein, nothing contained in this Agreement shall be construed as conferring by implication or otherwise any license or right under any patent, trade name or copyright of the company Zimbra, Yahoo!, 01.com or Customer. With unambiguous attribution, including a hyper text link to the 01.com home page (http://www.01.com), in whole or in part, you may distribute 01.com's public articles or graphics. Examples of public articles or graphics include those found at http://faqs.01.com and http://blog.01.com. In whole or in part, you may not distribute 01.com's Password Protected software, articles or graphics ("Confidential Information") without the advanced and explicit written permission of 01.com. Examples of Company's Confidential Information include and are not limited to the software, articles and graphics found within the Company's Zimbra servers, Online Help Desk, Downloads, News, Knowledgebase and Ticketing System.
Zimbra Licensing:
1. This Agreement does not permit Customer or any third party to: (i) sublicense, rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Network Software; (ii) distribute the Network Source Code or derivative works thereof; (iii) copy the Network Software (other than as expressly provided herein); (iv) remove any proprietary markings, copyright, notices, logos, trademarks, trade names or labels on the Network Software and/or Documentation; provided, however, that Customer may replace Zimbra the company's logo in the Client Side Software with Customer’s logo but only for use with the Network Software; (v) use the embedded database software as a general SQL server, as a standalone database or with applications other than the Network Software; (vi) use the Server Side Software on any computer not controlled by the Licensee; (vii) allow any third party, other than Licensee’s End Users to use the Network Software; or (viii) produce a derivative work of the Network Source Code.
2. This Agreement only provides a personal, non-transferable, and non-exclusive license to use the Service for Customer’s internal business. Customer may not use the Network Software to provide more Mailboxes than the number for which Customer pays 01.com.
3. Zimbra the company, as 01.com's licensor, retains all right, title and interest, including any Intellectual Property Rights, in and to the Network Software and all portions thereof, and no title to the Network Software, or any Intellectual Property Rights in the Network Software, is transferred to such Customer.
Confidential Information.
1. Use. Each party agrees to use Confidential Information solely for the purpose of evaluating the commercial potential of and pursuing a business relationship with the other party and to use reasonable care to disclose Confidential Information only to employees or consultants of the receiving party who need access to the Confidential Information in the ordinary course of their employment. "Confidential Information" means all technical and non-technical information concerning the disclosing party's business not generally known to the public, which is disclosed to the receiving party either in written or oral form, including but not limited to the following information: patents, copyrights, trademarks, brand name, experimental work, purchasing, manufacturing, future and proposed products and services, procurement requirements, business forecasts, trade secrets, know-how, inventions, techniques, processes, algorithms, software, schematics, software source documents, contracts, customer lists, financial information, and sales and marketing plans.
2. Ownership. All Confidential Information and any products of the Confidential Information, regardless of which party creates the such products, shall remain the property of the disclosing party, and no license or other rights to such disclosing party's Confidential Information or products thereof is granted or implied hereby. At the disclosing party's request and no later than five (5) business days after such request, the receiving party shall promptly destroy or deliver to the disclosing party, at the disclosing party's option: (a) all materials furnished to the receiving party by the disclosing party; (b) all tangible media of expression in such receiving party's possession or control that contains Confidential Information; and (c) written certification of such receiving party's compliance with the obligations contained in this Agreement.
3. Independent Development. Each party understands that the receiving party may currently or in the future be developing information internally, or receiving information from third parties that may be similar to the disclosing party's Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that such receiving party will not develop products or services, or have products or services developed that, without violation of this Agreement, compete with the products or services contemplated by the disclosing party's Confidential Information.
4. Injunctive Relief. The parties acknowledge that a breach by either party of any provision of this Agreement will result in irreparable and continuing damage to the other party for which there will be no adequate remedy at law, and such other party shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
Transfer and Assignment: Neither party, other than for collateral purposes, may sell, assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to any of its affiliates or any person or entity who acquires substantially all of its assets.
LIMITATIONS TO SERVICE: We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property. 01.COM AND/OR ITS THIRD PARTY SERVICE PROVIDER RESERVES THE RIGHT TO REFRAIN FROM PROVIDING ANY OR ALL SERVICES ORDERED AND INSTEAD REFUND THE CUSTOMER'S PAYMENT, WHOLLY OR IN PART, ON THE BASIS THAT THE MINIMUM SYSTEM REQUIREMENTS ARE NOT MET OR THE TECHNICAL NEEDS (INCLUDING WIRING OR OVERCOMING PHYSICAL OR TECHNICAL BARRIERS) OR OTHER REQUIREMENTS OF THE CUSTOMER ARE UNUSUAL OR EXTENSIVE AND BEYOND THE SCOPE OF THIS SERVICE AGREEMENT AS REASONABLY DETERMINED BY 01.COM AND/OR ITS THIRD PARTY SERVICE PROVIDER AND/OR LICENSOR. Our Services are subject to availability of our qualified team members.
Compliance with Laws: Customer will strictly comply with all applicable laws and regulations relating in any manner to the distribution of the Services and software including, but not limited to, (i) complying with all applicable United States export laws, rules, and regulations, and (ii) obtaining all necessary export and import licenses or permits and any other government approval necessary for the importation of the software or Services into any country other than the United States. Customer confirms it will not export or re-export software or Services, directly or indirectly either to (a) any countries that are the subject to United States export restrictions; any Subscriber who Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or any Subscriber who Customer knows has been prohibited from participating in the United States export transactions by any federal agency of the United States Government. Customer acknowledges that software and Services may include technical data subject to export and re- export restrictions imposed by United States law.
Customer represents and warrants: (a) Customer has received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which Customer is engaged; and (b) Customer has complied and does comply with all laws, regulations, orders and statutes which may be applicable to Customer whether local, state, federal or foreign. From the date of this Agreement until the termination hereof, customer agrees to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign. Customer agrees to indemnify, defend and hold harmless 01.com from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of Customer's failure to comply with this provision.
01.com represents and warrants: (a) 01.com has received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which 01.com is engaged; and (b) 01.com has complied and does comply with all laws, regulations, orders and statutes which may be applicable to 01.com whether local, state, federal or foreign. From the date of this Agreement until the termination hereof, 01.com agrees to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign. 01.com agrees to indemnify, defend and hold harmless Customer from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of 01.com's failure to comply with this provision.
FORCE MAJEURE: If 01.com's and/or its third party service provider's ability to render services is impaired by you or circumstances beyond the control of 01.com and/or its third party service provider, 01.com and/or its third party service provider may choose not to provide services.
LIMITATION OF REMEDY: UNDER NO CIRCUMSTANCES SHALL 01.COM, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANYDAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES COSTS, PROFITS, LOST SAVINGS OR EARNINGS, LOST OR CORRUPTED DATA, OR OTHER LIABILITY ARISING OUT OF, OR RELATED TO, THE SERVICES PROVIDED BY 01.COM AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) OR OUT OF THE INSTALLATION, DEINSTALLATION, USE OF, OR INABILITY TO USE YOUR COMPUTER SOFTWARE, HARDWARE, PERIPHERALS, OR THE NETWORK RESULTING FROM THE SERVICES PROVIDED HEREUNDER.
RELEASE OF LIABILITY: BY AGREEING TO THESE TERMS, YOU AFFIRMATIVELY RELEASE AND HOLD HARMLESS 01.COM, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) FROM AND AGAINST ANY LOSS, LIABILITY, OR DAMAGE THAT YOU, YOUR ORGANIZATION OR A THIRD PARTY MAY SUFFER, INCLUDING AND NOT LIMITED TO ANY LOSS OF ANY DATA AND THE NON-FUNCTIONING OF ANY COMPONENT OR ELEMENT OF YOUR COMPUTER SOFTWARE, HARDWARE OR NETWORK RESULTING FROM 01.COM, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD PARTY SERVICE PROVIDER'S AGENTS, PARTNERS AND/OR THIRD PARTY SERVICE PROVIDERS AND/OR LICENSORS, REGARDLESS OF WARRANTIES, DISCLAIMERS AND WAIVERS.
Notices: Unless specifically noted otherwise, all notices required to be given to either party shall be sent to the names and e-mail address as presented by the Customer to the Customer, and to 01.com at legal (at) 01.com.
Entire Agreement: There are 42 numbered points to this Agreement, containing the entire understanding between the parties. It is agreed that subsequent agreements and transactions between the parties will serve to supplement the terms and conditions herein to the extent specified above. Should any terms or conditions within this Agreement, or any amendment be in conflict or inconsistent with one another, the amendment shall control over any language in this Agreement. Pre-printed or standard terms contained in any agreement or other document issued or prepared by Customer or 01.com, shall be void and of no force and effect. Verbal commitments made by either Customer or 01.com shall be non-binding.
Severability. Each provision of this Agreement and Attachment(s) must be interpreted in a way that is valid under applicable law. If any provision is held invalid, the remaining provisions of the Agreement and Attachment(s) will remain in full effect.
Remedies Cumulative. Any rights of termination, cancellation, liquidated damages or other remedies prescribed in this Agreement and Attachment(s) are cumulative and are not intended to be exclusive of other remedies to which the injured party may be entitled at law or equity in case of any breach or threatened breach by the other party of any provision of this Agreement. Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing provisions of this Agreement; provided, however, that a party shall not be entitled to retaining the benefit of inconsistent remedies. This Agreement and all Attachments shall be subject to the United States State of Illinois law and enforceable in the courts of Cook County, Illinois and all matters pertaining here to shall be heard there. All parties hereby consent to the jurisdiction of such courts in any action regardless of the residence of such party.

Customer hereby acknowledges that he or she has reviewed the terms and conditions in this Agreement and each of the Attachments referred to herein, and 01.com and Customer have caused their duly authorized representatives to execute the Agreement on and as of the date first set forth below. This Agreement may be executed (by original or faxed signature, or by electronic submission by Customer typing his/her name) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.

USE OF 01.COM SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY.

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