Your use of Cognent services and your visit of our company websites is governed by the Cognent General Terms of Service as incorporated herein and any service agreement we have in place with you. When we use the term "agreement" in any of our proposals, service quotations, invoicing, Terms of Service, or Acceptable Use Policy, we are referring collectively to all of them. The individual who executes a service request with Cognent does so, on behalf of the company or other legal entity they order on behalf of and they represents that he or she has the authority to bind that entity to enter into this agreement with Cognent and its partner companies.
1. DEFINED TERMS.
Some words used in our agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the Cognent Acceptable Use Policy, as incorporated herein and as of the date you enter into a business relationship with Cognent and as it may be amended pursuant to the section below.
"Business Day" means 9:00 a.m. – 5:00 p.m. Monday through Friday, United States eastern time, excluding federal public holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, our systems, (ii) for Cognent, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of any of our data centers), server configuration designs, unpublished software design elements or concepts you may observe or we may disclose to you, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's confidential information, or that becomes available to one of us other than through a violation of the agreement or applicable law, shall not be deemed "confidential information" of the other party.
"Cloud server" means your unique location on one of our servers for services you contract for;
"Data center network" means the portion of the Cognent network extending from the network egress point of your hosted services to the outbound port of the data center border router;
"Fees" means the monthly fees payable each billing period in which the failure occurred;
“Scheduled maintenance" means maintenance that is announced at least ten business days in advance, and that does not exceed sixty minutes in any calendar month.
"Junk Mail" means email that is captured by our mail filter and other email that is reported by you to Cognent as undesirable.
"Services" means Cognent provided services.
"SPAM mail" means any unsolicited or bulk email sent or received through our network whether requested, or not by the recipient.
2. COGNENT'S OBLIGATIONS.
Contingent on Cognent's acceptance of your service request and subject to these General Terms of Service, Cognent hereby agrees to provide the contracted services pursuant to the executed service request between Cognent and the customer and pursuant to these General Terms of Service.
Cognent Security Practices
Server Physical Access: The servers used to provide the services are located in a controlled access data center operated by our affiliated companies or business partners. Access to the datacenters will be restricted to employees or authorized agents who need access for the purpose of providing the services. The data center is staffed 24/7/365 and is monitored by video surveillance. Entrance to the data center will be authorized by approved security authentication methods.
Cognent and Authorized Personnel: Cognent will restrict the use of administrative access codes for customer accounts to its employees and other agents who need the access codes for the purpose of providing the services. Each access will be logged and tagged to the individual who accessed the data.
Reports of and Response to Security Breach: Cognent will immediately report to you any unauthorized access or release of your information of which we become aware. Upon request, we will promptly provide to you all the information and documentation that we have available to us in connection with any such event.
3. YOUR OBLIGATIONS.
You agree to do each of the following:
i. comply with all applicable laws and the Cognent Acceptable Use Policy as incorporated herein
ii. pay when due the fees for the services contracted by you,
iii. use reasonable security precautions in light of your use of the services,
iv. cooperate with Cognent's reasonable investigation of outages, security problems, and any suspected breach of this agreement,
v. keep your billing contact and other account information up to date; and
vi immediately notify Cognent of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the General Terms of Service, Cognent's reasonable determination shall control.
3.1 For website/web presence development projects
You agree to perform all tasks assigned to you as set forth in the work order and to provide all assistance and cooperation in order to timely and efficiently complete the development project. You also agree to timely provide all necessary content for the development project in a reasonable time and in digital format acceptable to Cognent, unless otherwise agreed upon in the written development order. You also agree that any content to be developed by Cognent, outside of the scope of work as outlined in the development work order is subject to additional fees.
4. ACCESS TO THE SERVICES.
You may access the contracted services via the online control panel as provided to you or through any industry accepted applications or device. Cognent may modify its control panel or access points at any time.
5. SERVICE LEVEL AGREEMENT.
The Service Level Agreement(s) listed below are part of this agreement for those services you have contracted for:
We guaranty that our data center network will be available 100% of the time in any given monthly billing period, excluding scheduled maintenance.
5.2 Data Center Infrastructure
We guaranty that data center HVAC and power will be functioning 100% of the time in any given monthly billing period, excluding scheduled maintenance. Infrastructure downtime exists when downtime occurs as a result of power or heat problems.
5.3 Cloud Server Hosts
We guaranty the functioning of all of our cloud server hosts including compute and storage. If a cloud server host fails, we guaranty that restoration or repair will be complete within one hour of the identification of the problem.
If a cloud server migration is required because of cloud server host degradation, we will notify you at least 24 hours in advance of beginning the migration, unless we determine in our reasonable judgment, that we must begin the migration sooner to protect your cloud server data. Either way, we guaranty that the migration will be complete within four hours of the time that we begin the migration.
5.5 DNS Propagation
In the event that a service migration results in the change to the DNS service serving the service contracted, Cognent will notify you, if possible, prior to the DNS change. During the DNS propagation period, the services contracted may not be available for up to four hours dependent on the Internet service provider (ISP) being used by the party attempting to access the service, whether it is a Cognent customer or your end-user/customer. Access to the affected service will vary from Internet service provider to Internet service provider and it is expressly agreed that Cognent has no control over the policies of the individual ISPs.
If we fail to meet a guaranty stated above, you will be eligible for a credit. Credits will be calculated as a percentage of the fees you pay for hosting the services that are adversely affected by the failure for the current monthly billing period during which the failure occurred (to be applied at the end of the billing cycle), as follows:
Network: Five percent (5%) of the fees for each 30 minutes of network downtime, up to 100% of the fees;
Data Center Infrastructure: Five percent (5%) of fees for each 30 minutes of infrastructure downtime, up to 100% of the fees;
Cloud Server Hosts: Five percent (5%) of the fees for each additional hour of downtime, up to 100% of the fees;
Migration: Five percent (5%) of the fees for each additional hour of downtime, up to 100% of the fees.
DNS: No credit will be issued for the first four hours of downtime. Five percent (5%) of the fees for each additional hour of downtime, up to 100% of the fees.
You are not entitled to a credit if you are in breach of your services agreement with Cognent, including any payment obligations to us until you have cured the breach. You are not entitled to a credit if the downtime would not have occurred but for your breach of your agreement with Cognent or your misuse of our systems.
To receive a credit, you must contact your Cognent representative within thirty (30) days following the end of the downtime. You must show that your use of our services was adversely affected in some way as a result of the downtime to be eligible for the credit.
This guarantee is your sole and exclusive remedy for service unavailability.
Notwithstanding anything in these General Terms of Service to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of your fees for that billing period.
The initial term for each service contracted begins on the date we make the services available for your use and continues for the period stated in the service request. If no period is stated in the service request, then the initial term shall be one month. Upon expiration of the initial term, the services will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.
Cognent will charge you the fees stated in your service request. Unless you have made other arrangements, Cognent will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, labor, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Cognent's option; provided that Cognent may wait to charge your credit card until the total aggregate fees due are at least $10. Unless otherwise agreed in the service request, your billing cycle will be monthly, beginning on the date that Cognent first makes any services available to you. Cognent may suspend all services (including services provided pursuant to any unrelated service request or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Cognent may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Cognent brings a legal action to collect, or engages a collection agency, you must also pay Cognent's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any "credit" that we may owe you, such as a credit for failure to meet a service level agreement or guarantee, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Cognent with accurate factual information to help Cognent determine if any tax is due with respect to the provision of the services, and if Cognent is required by law to collect taxes on the provision of the services, you must pay Cognent the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Cognent to obtain a credit report at any time during the term of the service you contract for. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.
8. FEE INCREASES.
If you are under a month-to-month contract, then we may increase fees at any time on forty-five (45) days advance written notice. If the initial term of your service request or agreement, if any, is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins forty-five days from the day of our written notice of a fee increase.
We may suspend your services without liability if: (i) we reasonably believe that the services are being used (or have been or will be used) in violation of these General Terms of Service, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you do not cooperate with our reasonable investigation of any suspected violation of these General Terms of Service; (iv) we reasonably believe that your services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the services is necessary to protect our network or our other customers, (vi) a payment for the services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Cognent or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under these General Terms of Service, then we may continue to charge you the fees for the services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the services.
10. TERMINATION FOR CONVENIENCE; EARLY TERMINATION FEE.
You may terminate the services for convenience at any time on thirty days advance written notice. If you terminate the services for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to any minimum monthly financial commitment you have made, if any, for the remaining portion of the then-current term.
11. TERMINATION FOR BREACH.
We may terminate the services for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into an agreement with us at the time you submitted the service request, or if you are an entity or fiduciary, the individual submitting the service request did not have the legal right or authority to enter into an agreement with us on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of our network in an orderly fashion, (v) you use your services in violation of the acceptable use policy and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the acceptable use policy more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of these General Terms of Service and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the services for breach on written notice if: (i) we materially fail to provide the services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in these General Terms of Service and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12. ACCESS TO DATA.
12.1 You will not have access to your data stored on our systems during a suspension or following termination.
12.2 We backup our systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of our network or systems.
12.3 Although the Cognent cloud services may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on cloud systems somewhere other than on our systems.
13. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES.
Cognent is not responsible to you for unauthorized access to your data or the unauthorized use of our services unless the unauthorized access or use results from Cognent's failure to meet its security obligations as stated in these General Terms of Service. You are responsible for the use of the services by any employee of yours, any person to whom you have given access to the services, and any person who gains access to your data or the services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
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. Cognent has no obligation to provide security other than as stated in our General Terms of Service. We disclaim any and all warranties not expressly stated in any agreement we have in place with you, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen. The services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
15. EXPORT MATTERS.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Cognent is legally prohibited to provide services. You may not use Cognent services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
16. CONFIDENTIAL INFORMATION.
Each of us agrees not to use the other's confidential information except in connection with the performance or use of the services contracted, as applicable, the exercise of our respective legal rights under the General Terms of Service, or as may be required by law. Each of us agrees not to disclose the other's confidential information to any third person except as follows:
i. to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms of Service.
ii. to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
iii. in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing confidential information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
17. PUBLIC DISCLOSURE NOTICE.
Notwithstanding any contradictory language herein, Cognent believes and asserts that information contained in formal proposals or price quotations to provide services is subject to the exception to the Open Records law that allows certain public entities to protect the information, that, if released would give an advantage to a competitor of Cognent. Cognent also believes that information contained in formal proposals or price quotations to provide service to a public entity should be excerpted from public inspection.
18. LIMITATION ON DAMAGES.
Our obligations to you are defined by these General Terms of Service. Cognent, its affiliates or owners are not liable to you for failing to provide the services unless the failure results from a breach of these General Terms of Service, or results from our gross negligence or willful misconduct. The dollar credits stated herein are your sole and exclusive remedy for the unavailability of the services.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in these General Terms of Service to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Cognent's negligence, the maximum aggregate monetary liability of Cognent and any of its employees, agents, suppliers, or affiliates in connection with the services, the General Terms of Service, and any act or omission related to the services or the General Terms of Service, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the services contracted for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
If we, our affiliates, or any of our or their respective employees, agents, or suppliers are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by these General Terms of Service, violation of the acceptable use policy herein, or violation of Section 15 (Export Matters) of these General Terms of Service, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the parties sued as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the services, and any person who gains access to the services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
19.1 Digital millennia act indemnification
You shall indemnify and hold harmless Cognent and affiliated companies, employees, owners or partners from any and all claims, damages, liabilities, costs incurred by Cognent as a result of any claim, judgment or adjudication against Cognent related to or arising from any material provided to Cognent by you to be incorporated into any service provided by Cognent to you. Information for Digital Millennia Act “DMCA” notices can be found in Section 25.4 below.
In addition to the terms of the General Terms of Service, your use of any Amitor® service is governed by ItNix's license terms that are available at http://www.amitor.com.
21. WHO MAY USE THE SERVICES.
You may resell the services, but you are responsible for use of the services by any third party to the same extent as if you were using the services yourself. If you resell any part of the services that includes the Amitor® service, then you must include the Amitor® license terms described in Section 20 (Amitor®) above in a written agreement with your customers as well as the content of Section 24 (No High Risk Use). Unless otherwise agreed, Cognent will provide support only to you, not to any other person you authorize to use the services. There are no third party beneficiaries to these General Terms of Service, meaning that third parties do not have any rights against either of us under these Terms of Service.
22. CHANGES TO THE ACCEPTABLE USE POLICY.
We may change our acceptable use policy, incorporated herein, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your service will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional request for service for your account that incorporates the revised AUP or these General Terms of Service, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the service by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your service in place for the remainder of the term.
Your routine communications regarding the services should be sent to your Cognent account representative. If you want to give us notice regarding termination of the services for breach, indemnification, or other non-routine legal matter, you should send it by first-class United States mail to:
121 S. Orange Avenue, STE 1500
Orlando, FL 32801
Cognent's routine communications regarding the services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that Cognent may give notice of an amendment to the acceptable use policies herein by posting the notice on the Cognent website (cognent.com). Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of acceptable use policy amendments are deemed delivered as of the first time that you log on to your control panel after the time that the notice is posted, or at the time you are advised of them by your account representative or by a notice to you via our invoices for services to you. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
24. NO HIGH RISK USE.
You may not use the services in any situation where failure or fault of the services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
25. OWNERSHIP OF INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Cognent during the performance of the services shall belong to Cognent unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
25.1 Cognent Trade Dress
You expressly acknowledge that the Cognent logo, the Cognent “o”, “Intelligent, Internet, Information”, the Cognent iT3 slogan, “Cognent works with clients to expedite business success”, the Cognent website look-and-feel and related trade dress material are trademarks or service marks of Cognent.
You expressly acknowledge that Amitor® is a registered trademark of ItNix, LLC., and that all rights are exclusively reserved.
25.3 Ownership of customer website/online presence of Cognent design elements.
You expressly accept that all HTML, CSS or other web presence coding, custom graphics, animation or presentation elements, page layout, excluding customer provided elements are the intellectual property of Cognent or, if ItNix, LLC. licensed material, is the intellectual property of ItNix, LLC. Cognent, at its sole discretion, will provide you a Limited Copyright License to use the intellectual property of Cognent or its affiliates on the customer’s website or online presence to facilitate hosting of the online elements outside of the Cognent network. The Limited Copyright License is not transferrable to any third-party nor does it confer exclusive rights to the recipient.
25.4 Digital millennium copyright act
If you are a copyright owner or an agent thereof and believe that any content on our managed websites or services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Act “DMCA” by providing the following information in writing:
a. Identification of the copyright work claimed to have been infringed;
b. Identification of the material that is claimed to be infringing and information of the location of the material allegedly infringing to give the Cognent investigator sufficient information to locate the material;
c. Your contact information to be notified of any action we take;
d. A written statement that you have good faith belief that the use of the material in the manner complained is not authorized by the copyright owner, or the law, and
e. A written statement that the information you provide is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright material.
Submit Digital Millennium Act (DCMA) Notices to:
Intellectual Property Manager
121 S. Orange Avenue, STE 1500
Orlando, FL 32801
Or via facsimile to:
+1 915 755 3607
You may not assign any agreement you have in place with us without Cognent's prior written consent. We may assign these Terms of Service or any agreement we have in place with you in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Cognent may use third party service providers to perform all or any part of the services, but Cognent remains responsible to you under these Terms of Service for work performed by its third party service providers to the same extent as if Cognent performed the services itself.
27. FORCE MAJEURE.
Neither of us will be in violation of the Terms of Service if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
28. GOVERNING LAW, LAWSUITS.
The Terms of Service is governed by the laws of the State of Florida, exclusive of any Florida choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Terms of Service shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Terms of Service shall be in the state or federal courts in Orange County, Florida, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Cognent or any of its employees or affiliates. Each of us agrees that we will not bring a claim under these Terms of Service more than two years after the time that the claim accrued.
29. AGREEMENT MECHANICS.
If any part of the Terms of Service is found unenforceable by a court or other tribunal, the rest of the Terms of Service will nonetheless continue to be in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties. Each of us may enforce each of our respective rights under these Terms of Service even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party.
30. DOMAIN NAME REGISTRATION SERVICES.
If you register, renew, or transfer a domain name through Cognent, Cognent will submit the request to its domain name services provider (the "Registrar") on your behalf. Cognent’s sole responsibility is to submit the request to the Registrar. Cognent is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name and you are responsible for responding to any inquiries sent to you by the Registrar. Domain renewals and registration services are provided at your sole risk and you further agree that Cognent accepts no liability in regards to the domain name’s availability prior to registration or potential copyright or trademark infringement action brought against the domain name. You further agree that should a domain name dispute action be brought against the domain name that you will be solely responsible for any and all costs associated with the action.
30.1 Domain name transfers
You agree that any transfer of a domain name to a third-party is expressly at your sole discretion and responsibility. Further you agree that any transfer out of Cognent’s control of a domain name requires that all fees due Cognent are paid in full and that domain name transfers will only be accepted by Cognent via a fully completed and executed Domain Name Release Form.
31. MAIL SERVICES.
You may access your mail services over the web via our control panel. Cognent may modify its control panel at any time.
31.2 Management of the service
Cognent will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding wireless or other service components, configuring email clients or other services, managing settings, and or configuring spam filters.
Cognent will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Cognent recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Guaranty and other guarantees referenced herein. Cognent will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Cognent and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Cognent's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
31.4 Memory Limitations
Mail that exceeds the storage limit when received may be permanently lost. You may request the adjustment of the storage capacity of your individual mailboxes through your service representative or through your control panel, if one is available, and it is your obligation to monitor the individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost.
31.5 Content Privacy
Your email messages and other items sent or received via the mail service will include: (i) the content of the communication ("content"), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the "message routing data"). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
31.6 Usage Data
We may collect and store information related to your use of the services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
31.7 Unsolicited Bulk Email “SPAM”
You agree to not use our email services to send bulk or unsolicited email to any third-parties. You further agree not to send the same email to more than twenty (20) email addresses at any time, even if such email is divided into increments of twenty or less addresses at the time.
32. WEBSITE/ONLINE PRESENCE DEVELOPMENT TERMS.
32.1 Scope of Work
You hereby acknowledge that the scope of work is defined as per the written order in force between the parties during the development of the project and that it is the full-scope of the project under development and that all other work requests, commitments or promises made outside of the written order are null and void.
32.2 Estimated Costs of the Project
Cognent hereby agrees that the estimated costs of the development project will not exceed the project price quotation in the written order. Should conditions beyond the control of Cognent force a revision of the total cost to complete the development project, Cognent will cease work on the project and notify you and request written approval for the new fee before proceeding with the development project.
32.3 Payment Schedule
All development projects accepted by Cognent require a fifty-percent payment of the project fee, as outlined in the project written order before any work is to commence, provided and unless other payment arrangements have been included in the project work order.
32.4 Estimated time to completion
All development delivery dates are estimates and are forward looking assumptions and subject to your active participation in the development of the project.
Cognent, its affiliates and partners respect the privacy of our visitors and our customers and are committed to protecting your personal information. We collect no personally identifiable information about you when you visit our company sites unless you choose to provide such information to us as specifically outlined herein.
Cognent complies with the EU Safe Harbor framework as set forth by the Department of Commerce regarding the collection, use and retention of data from members of the European Union.
Cognent complies with Mexico\’s Privacy Law.
33.1 For visitors
Cognent does not collect and personally identifiable information about you when you visit our business websites. All publicly visible parts of our business websites do not require you to disclose personal information to view. When you visit our public business websites Cognent may collect basic information that may include your ISP’s domain, the times you access our website, the page or pages you visit within our websites, and the IP address of the connection you used to connect to our public websites.
We use this information to provide you with content we deem may be of interest to you during your visit and to secure our network against unauthorized access. Further may use “cookies”, small pieces of information stored on your computer to analyze web traffic and for marketing purposes.
33.2 For new and existing customers
Cognent will request personal information such as your name or address in order to provide you with the service or information you request. All requested information will only be provided by you at your sole discretion.
We use this information to provide you with the services or information you requested.
We do not sell or rent your personal information to anyone.
33.3 Links to other websites
Cognent may provide links to third-party websites from time to time. Cognent is not responsible for the privacy policies of those third-parties.
Cognent does not sell or provide service to anyone under the age of eighteen years of age.
Version: October 2011