Terms of Service
This page last published: February
- Order, Acceptance and Service.
Accepted by OldOak.net, the Order submitted by Customer creates a
contract between Customer and OldOak.net, consisting of the Service
Agreement, the applicable Service Description(s), the then-current
Acceptable Use Policy, and these Terms of Service. An Order is
"Accepted" by OldOak.net when OldOak.net confirms the order
online or provides Services in response to
will provide, and Customer will purchase and pay for, the Services
specified in the Service Agreement for fees specified in the Service
Agreement (the "Service Fees").
will not use storage space in excess of the storage limits established
for the Services in the Service Descriptions, plus any storage space
purchased by Customer. If Customer uses storage space in excess of such
amounts, OldOak.net may, without limiting its other rights or remedies,
assess Customer additional fees.
Customer's actual bandwidth usage in any month exceeds the limit in the
Service Description, Customer will pay OldOak.net such additional fees as
may be specified in the Service Description.
- Fees, Taxes, and Payment.
pay to OldOak.net the Service Fees in the manner set forth in the Service
Agreement. OldOak.net may increase the Service Fees (i) in the manner permitted
in the Service Description and (ii) at any time by providing thirty
(30) days prior written notice thereof to Customer. The Service Fees do
not include any applicable sales tax imposed by any taxing authority. All such
taxes will be added to OldOak.net's invoices for the Service Fees as separate
charges to be paid by Customer. All fees are fully earned when due and
non-refundable when paid. Any amounts payable to OldOak.net which are not paid
when due will bear interest at the rate of one and one half percent (1.5%) per
month or the maximum rate permitted by applicable law, whichever is less. If OldOak.net
collects any payment through arbitration, litigation or through
a collection agency, Customer will pay all costs of collection,
including, without limitation, all court costs and reasonable attorneys' fees.
If any check is returned for insufficient funds, OldOak.net may impose a
processing charge of $25.
- Term and Termination.
will commence on the Service Activation Date indicated in the Service
Agreement and continue until terminated in accordance with these Terms of
may terminate this Agreement immediately upon the occurrence of any one
or more of the following events: (i) the Customer fails to pay when due
any amounts required to be paid under this Agreement; (ii) the Customer
breaches any material term or provision of this Agreement (other than a
breach described in subsection (i) above), and if capable of cure, such
breach remains uncured 30 days after OldOak.net gives written notice
thereof to the Customer. The Customer may reactivate an Agreement which has been terminated due to non-payment
of any amounts due by paying the amounts due plus the Initial Set Up Fee
for each Service within thirty (30) days of termination.
may terminate this Agreement if the Customer becomes insolvent, makes an
assignment for the benefit of its creditors, institutes or becomes
subject to any proceeding under any bankruptcy or similar laws for the
relief of debtors, or seeks the appointment of, or becomes subject to the
appoint of, any trustee or receiver for all or any portion of such
may immediately terminate this Agreement, without notice, (i) if the
Services are prohibited by applicable law, or (2)
become impractical or unfeasible for any technical, legal or
regulatory reason, or (3) if OldOak.net determines that
Customer's use of the Customer Web site or the Customer Content violates
the Acceptable Use Policy. After termination under this
portion of the agreement, OldOak.net shall provide written notice to the Customer of the termination and the reasons for the
- Customer may
terminate this Agreement by providing written notice to OldOak.net at
least 30 days prior to the date of termination. Customer may terminate
this Agreement if OldOak.net breaches any material term or provision of
this Agreement and, if capable of cure, such breach remains uncured 30
days after Customer gives written notice thereof to OldOak.net.
termination of this Agreement neither party shall have any further rights or obligations under this Agreement,
except as expressly set forth herein. The provisions of
Sections 3(f), 4, 8, 10, 11, and 13 of this Agreement shall survive
the expiration or termination of this Agreement for any cause or reason
whatsoever, and, notwithstanding the expiration or termination of this
Agreement, the Customer remain liable to OldOak.net for any indebtedness
or other liability theretofore arising under this Agreement. Termination
of this Agreement and retention of pre-paid fees and charges shall be in
addition to, and not be in lieu of, any other legal or equitable rights
or remedies to which OldOak.net may be entitled.
- Customer's Representations and
hereby represents and warrants to OldOak.net, and will ensure that: Customer is
the owner or valid licensee of the Customer Content and each element thereof,
and Customer has secured all necessary licenses, consents, permissions, waivers
and releases for the use of the Customer Content and each element thereof,
including without limitation, all trademarks, logos, names and likenesses
contained therein, without any obligation by OldOak.net to pay any fees, residuals,
guild payments or other compensation of any kind to any Person; Customer's use,
publication and display of the Customer Content will not infringe any
copyright, patent, trademark, trade secret or other proprietary or intellectual
property right of any Person, or constitute a defamation, invasion of privacy
or violation of any right of publicity or any other right of any Person,
including, without limitation, any contractual, statutory or common law right
or any "moral right" or similar right however denominated; Customer
will comply with all applicable laws, rules and regulations regarding the
Customer Content and the Customer Web site and will use the Customer Web site
only for lawful purposes; and Customer has used its best efforts to ensure that
the Customer Content is and will at all times remain free of all pornography,
obscene materials, materials designed to engender hate or promote violence,
computer viruses, worms, Trojan horses and other malicious code.
- License to OldOak.net.
hereby grants to OldOak.net a non-exclusive, royalty-free, worldwide right and
license to do the following to the extent necessary in the performance of
Services under the Order: digitize, convert, install, upload, select, order,
arrange, compile, combine, synchronize, use, reproduce, store, process,
retrieve, transmit, distribute, publish, publicly display, publicly perform and
hyperlink the Customer Content; and make archival or back-up copies of the
Customer Content and the Customer Web site. Except for the rights expressly
granted above, OldOak.net is not acquiring any right, title or interest in or
to the Customer Content, all of which shall remain solely with Customer.
Customer grants OldOak.net the right to retain back-up copies of the Customer
Content for a reasonable period of time after termination of this Agreement.
Acceptable Use Policy.
abide by, and utilize the Services and the Customer Web site only in accordance
with, the Acceptable Use Policy ("AUP") that OldOak.net posts on its
Web site. Customer shall familiarize itself with the AUP and periodically
access OldOak.net's Web site to determine if OldOak.net has made any changes
- Customer's Responsibilities.
- Customer is
solely responsible for the quality, performance and all other aspects of
the Customer Content and the goods or services provided through the
Customer Web site.
will cooperate fully with OldOak.net in connection with OldOak.net's
performance of the Services. Customer must provide any equipment or
software that may be necessary for Customer to use the Services. Customer
will notify OldOak.net of any change in Customer's mailing address,
telephone, e-mail or other contact information.
- Because the
Services permit Customer to electronically transmit or upload content
directly to the Customer Web site, Customer shall be fully responsible
for uploading all content to the Customer Web site and supplementing,
modifying and updating the Customer Web site. Customer is also
responsible for ensuring that the Customer Content and all aspects of the
Customer Web site are compatible with the hardware and software used by OldOak.net
to provide the Hosting Services, as the same may be
changed by OldOak.net from time to time. Specifications for the
hardware and software used by OldOak.net to provide the Services will be
available on OldOak.net's Web site. Customer shall periodically access OldOak.net's
Web site to determine if OldOak.net has made any changes thereto. OldOak.net
shall not be responsible for any damages to the Customer Content, the
Customer Web site or other damages or any malfunctions or service
interruptions caused by any failure of the Customer Content or any aspect
of the Customer Web site to be compatible with the hardware and software
used by OldOak.net to provide the Services.
- Unless the
applicable Service Description provides otherwise, Customer is solely
responsible for making back-up copies of the Customer Web site and
expects Customers to purchase the level of Hosting Services to meet the
needs of their enterprise and/or usage requirements. To assure that OldOak.net'S
Hosting Services are reliable and available for all of our customers,
Customer's usage of Hosting Services cannot adversely affect other
customers. Customer agrees that if a server approaches capacity,
Customer's account may be moved to another server, which may change
Customer's IP Address or other information. Customer agrees that if
Customer's bandwidth and storage space usage adversely affects other
customers, OldOak.net may disable, suspend, or terminate your Hosting
Services without liability. OldOak.net'S Shared Hosting Services are for web-hosting and e-mail hosting only. Using OldOak.net'S
Shared Hosting Services primarily as online storage space for archived
electronic files is prohibited.
hereby grants to Customer a non-exclusive, non-transferable, royalty-free
license, exercisable solely during the term of this Agreement, to use
applicable OldOak.net Technology solely for the purpose of accessing and
using the Services. Except for the rights expressly granted above, this
Agreement does not transfer from OldOak.net to Customer any OldOak.net
Technology, and all rights, titles and interests in and to the OldOak.net
Technology shall remain solely with OldOak.net. Customer shall not,
directly or indirectly, reverse engineer, decompile, disassemble or
otherwise attempt to derive source code or other trade secrets from any
of the OldOak.net Technology.
trademarks, tradenames, service marks, logos, other names and marks, and
related product and service names, design marks and slogans are the sole
and exclusive property of OldOak.net. Customer may not use any of the
foregoing in any advertising, publicity or in any other commercial manner
without the prior written consent of OldOak.net. OldOak.net shall
maintain and control ownership of all Internet protocol numbers and
addresses that may be assigned by OldOak.net to Customer. OldOak.net may,
in its sole discretion, change or remove any and all such Internet
protocol numbers and addresses.
feedback, data, answers, questions, comments, suggestions, ideas or the
like which Customer sends to OldOak.net relating to the Services will be
treated as being non-confidential and non-proprietary. OldOak.net may
use, disclose or publish any ideas, concepts, know-how or techniques
contained in such information for any purpose whatsoever.
- Limited Warranty.
- The Service
Description for some Services may specify a 30 Day,
Money Back Guarantee ("Guarantee"). Customer may, at Customer's
sole option, request a refund of all fees paid for such Service. The
request must made in writing and received by OldOak.net
within 30 days of the Service Activation Date. The request must state the
reason for the refund request. A Customer may receive no more than one
refund for a Service. OldOak.net may refuse to sell and provision a
service if, in its sole judgment, it believes that the Customer intends a
priori to use the service for less than 30 days and intends a priori to
exercise the Guarantee.
represents and warrants to Customer that the Services will be performed
(i) in a manner consistent with industry standards reasonably applicable
to the performance thereof; (ii) at least at the same level of service as
provided by OldOak.net generally to its other customers for the same
services; and (iii) in compliance in all material respects with the
applicable Service Descriptions. Customer will be deemed to have accepted
such Services unless Customer notifies OldOak.net within 30 days after
performance of any Services of any breach of the foregoing warranties.
Customer's sole and exclusive remedy, and OldOak.net's sole obligation,
for breach of the foregoing warranties shall be for OldOak.net, at its
option, to re-perform the defective Services at no cost to Customer, or,
in the event of interruptions to the Services caused by a breach of the
foregoing warranties, issue Customer a credit in an amount equal to the
current monthly Service Fees pro rated by the number of hours in which
the Services have been interrupted.
foregoing warranties shall not apply to performance issues or defects in
the Services (i) caused by factors outside of OldOak.net's reasonable
control; (ii) that resulted from any actions or inactions of Customer or
any third parties; or (iii) that resulted from Customer's equipment or
any third-party equipment not within the sole control of OldOak.net.
- EXCEPT AS
EXPRESSLY PROVIDED IN THIS SECTION 9, OldOak.net MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND OldOak.net HEREBY EXPRESSLY
DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS
PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. OldOak.net
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY
- Limitation of Liability.
- IN NO EVENT
WILL OldOak.net'S LIABILITY IN CONNECTION WITH THE SERVICES OR ANY ORDER,
WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF
WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO OldOak.net
BY CUSTOMER DURING THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO SUCH LIABILITY.
CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME,
INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE
INTERNET. OldOak.net WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO,
OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT
DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR
STORED ON ITS SYSTEM.
- EXCEPT AS
EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE
OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF
USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES
OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE
OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM
AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
limitations contained in this Section 10 apply to all causes of action in
the aggregate, whether based in contract, tort or any other legal theory
(including strict liability), other than claims based on fraud or willful
misconduct. The limitations contained in Section 10(c) shall not apply to
liability arising on account of a party's breach of Section 13 or to
Customer's indemnification obligations under Section 11.
- Indemnification of OldOak.net.
defend, indemnify and hold harmless OldOak.net, its affiliates and their
respective present, former and future officers, directors, employees and
agents, and their respective heirs, legal representatives, successors and
assigns (collectively the "OldOak.net Indemnitees"), from and against
any and all losses, damages, costs, liabilities and expenses (including,
without limitation, amounts paid in settlement and reasonable attorneys' fees)
which any of the OldOak.net Indemnitees may suffer, incur or sustain resulting
from or arising out of (i) Customer's breach of any representation, warranty,
or covenant contained in the Agreement, (ii) the Customer Content, the Customer
Web site or any End User's use of the Customer Content or the Customer Web
site, (iii) violation by Customer or any of its officers, directors, employees
or agents of the Acceptable Use Policy or any applicable law, (iv) claims or
actions of third parties alleging misappropriation of trade secrets or
infringement of patents, copyrights, trademarks or other intellectual property
rights arising from the use, display or publication of Customer's domain names,
the Customer Web site, the Customer Content, or the use of the Services in
combination with hardware, software or content not provided by OldOak.net, (v)
claims or actions by third parties relating to or arising out of Customer's use
of the Services, and (vi) any failure of the Customer Content or any aspect of
the Customer Web site to be compatible with the hardware or software used by OldOak.net
to provide the Services, including any damage to OldOak.net's servers or other
hardware caused thereby.
- Indemnification of Customer.
- Subject to
Section 10, OldOak.net shall, at its own expense, indemnify, defend and
hold Customer harmless from any claim or suit alleging that the Services
infringe any United States patent, copyright or trademark existing on the
Service Activation Date, or that OldOak.net has knowingly misappropriated
any trade secret or other intellectual property right of any other
Person, including any losses, damages or expenses arising from any such
claim or suit. Customer agrees to cooperate with and assist OldOak.net in
the defense or settlement of any such claim or suit. Customer shall be
reimbursed for all reasonable out-of-pocket expenses incurred in
providing any cooperation or assistance requested by OldOak.net, but OldOak.net
will not be liable for any costs or expenses incurred without its prior
after receipt by Customer of a threat of any claim or suit, or a notice
of the commencement or filing of any claim or suit, against which
Customer may be indemnified hereunder, Customer shall give written notice
thereof to OldOak.net, provided that failure to give or delay in giving
such notice to OldOak.net shall not relieve OldOak.net of any liability
it may have to Customer hereunder, except to the extent that the defense
of such claim or suit is prejudiced thereby. OldOak.net shall have sole
control of the defense, and of all negotiations for settlement, of such
claim or suit. Subject to the foregoing, Customer may participate in the
defense of any such claim or suit at Customer's own expense.
- If an
injunction, decree or judgment is, or OldOak.net believes in its sole
discretion is likely to be, entered providing that Customer may not use
the Services as contemplated in this Agreement without violating the
intellectual property rights of a third party, OldOak.net may, at its
sole option and expense, either (i) procure for Customer the right to use
the Services or affected part thereof as provided in this Agreement; (ii)
replace the Services or affected part thereof with other non-infringing
services or modify the Services or affected part thereof so as to be
non-infringing; or (iii) terminate this Agreement upon written notice to
Section 12(a), OldOak.net assumes no liability for infringement claims
arising from (i) use of the Services with third-party products or
services where the third-party products or services cause the
infringement, (ii) any modification of the Services not authorized by OldOak.net
in writing, (iii) the Customer Content, the Customer Web site or any
content, data or information provided or supplied by an End User, or (iv)
Customer's use of any third-party software provided hereunder. THE
FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE
LIABILITY AND OBLIGATION OF OldOak.net, AND THE EXCLUSIVE REMEDY OF
CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
- Each party
will not, without the prior written consent of the other party, use or
disclose to any Person any Proprietary Information of the other party
disclosed or made available to it, except for use of such Proprietary
Information as required in connection with the performance of its
obligations or use of the Services hereunder. Subject to Section 13(b),
each party will (i) treat the Proprietary Information of the other party
as secret and confidential, (ii) limit access to the Proprietary
Information of the party to those of its employees who require it in
order to effectuate the purposes of this Agreement, and (iii) not
disclose the Proprietary Information of the other party to any other
Person without the prior written consent of the other party.
Section 13(a), the following shall not be considered Proprietary
Information: (i) any information that the receiving party can demonstrate
by written documentation was within its legitimate possession prior to
the time of disclosure by the disclosing party; (ii) any information that
was in the public domain prior to disclosure by the disclosing party as
evidenced by documents that were published prior to such disclosure;
(iii) any information that, after disclosure by the disclosing party,
comes into the public domain through no fault of the receiving party,
(iv) any information that is disclosed to the receiving party without
restriction by a third party who has legitimate possession thereof and
the legal right to make such disclosure; or (v) any information that, two
years after expiration or termination of this Agreement, does not
constitute a trade secret under applicable law.
- Each party
acknowledges that disclosure of any aspect of the Proprietary Information
of the other party shall immediately give rise to continuing irreparable
injury to the other party inadequately compensable in damages at law,
and, without prejudice to any other remedy available to the other party,
shall entitle the other party to injunctive or other equitable relief.
Upon expiration or termination of this Agreement for any reason, each
party shall promptly return to the other party all Proprietary
Information of the other party (including all copies thereof) in its
possession or control. Notwithstanding the foregoing, neither party shall
be required to destroy reasonable back-up tapes or other media.
- During the
term of this Agreement and for two years following expiration or
termination of this Agreement, Customer will not, directly or indirectly,
solicit or recruit the services of any employee of OldOak.net performing
services under this Agreement, while such employee is employed by OldOak.net
and for a period of six months after such employee has left the
employment of OldOak.net.
Contractor. OldOak.net and Customer are independent contractors and
nothing contained in this Agreement places OldOak.net and Customer in the
relationship of principal and agent, master and servant, partners or
joint venturers. Neither party has, expressly or by implication, or may
represent itself as having, any authority to make contracts or enter into
any agreements in the name of the other party, or to obligate or bind the
other party in any manner whatsoever.
Law; Arbitration of Disputes, Jurisdiction. The validity and effect of
this Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Missouri, without regard to its
conflicts of laws principles. The United Nations Convention on Contracts
for the International Sale of Goods does not apply to this
Agreement. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE BREACH THEREOF SHALL BE SETTLED BY ARBITRATION IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
JUDGEMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED AND
ENFORCEABLE IN ANY COURT HAVING JURISDICTION THEROF AS AGREED UPON
HEREIN. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE
BROUGHT IN A MISSOURI STATE COURT LOCATED IN SAINT CHARLES COUNTY,
MISSOURI, OR IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF
MISSOURI, EASTERN DIVISION. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS
TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE
APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
The headings herein are for convenience only and are not part of this
Agreement; Amendments. This Agreement, including documents incorporated
herein by reference, supersedes all prior discussions, negotiations and
agreements between the parties with respect to the subject matter hereof,
and this Agreement constitutes the sole and entire agreement between the
parties with respect to the matters covered hereby. In case of a conflict
between this Agreement and any purchase order, service order, work order,
confirmation, correspondence or other communication of Customer or OldOak.net,
the terms and conditions of this Agreement shall control. No additional
terms or conditions relating to the subject matter of this Agreement
shall be effective unless approved in writing by any authorized
representative of Customer and OldOak.net. This Agreement may not be
modified or amended except by another agreement in writing executed by
the parties hereto; provided, however, that these Terms of Service may be
modified from time to time by OldOak.net in its sole discretion, which
modifications will be effective upon posting to OldOak.net's Web site.
All rights and restrictions contained in this Agreement may be exercised
and shall be applicable and binding only to the extent that they do not
violate any applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement illegal, invalid or
unenforceable. If any provision or portion of any provision of this
Agreement shall be held to be illegal, invalid or unenforceable by a
court of competent jurisdiction, it is the intention of the parties that
the remaining provisions or portions thereof shall constitute their
agreement with respect to the subject matter hereof, and all such
remaining provisions or portions thereof shall remain in full force and
- Notices. All
notices and demands required or contemplated hereunder by one party to
the other shall be in writing and shall be deemed to have been duly made
and given upon date of delivery if delivered in person or by an overnight
delivery or postal service, upon receipt if delivered by facsimile the
receipt of which is confirmed by the recipient, or upon the expiration of
five days after the date of posting if mailed by certified mail, postage
prepaid, to the addresses or facsimile numbers of the parties. OldOak.net's
address and facsimile number are:
3021 N. Lincoln Ave
Chicago, IL 60657
Customer's address and facsimile number appear on the Service Agreement.
Either party may change its address or facsimile number for purposes of
this Agreement by notice in writing to the other party as provided
herein. Shared Customers may be given notice by electronic means in
certain circumstances as provided in the Service Description.
- Waiver. No
failure or delay by any party hereto to exercise any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy by any party preclude any other
or further exercise thereof or the exercise of any other right or remedy.
No express waiver or assent by any party hereto to any breach of or
default in any term or condition of this Agreement shall constitute a
waiver of or an assent to any succeeding breach of or default in the same
or any other term or condition hereof.
Successors. Customer may not assign or transfer this Agreement, or any of
its rights or obligations hereunder, without the prior written consent of
OldOak.net, which shall not be unreasonably withheld. Any attempted
assignment in violation of the foregoing provision shall be null and void
and of no force or effect whatsoever. OldOak.net may assign its rights
and obligations under this Agreement, and may engage subcontractors or
agents in performing its duties and exercising its rights hereunder, without
the consent of Customer. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
If this Agreement is signed manually, it may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. If this Agreement
is signed electronically, OldOak.net's records of such execution shall be
presumed accurate unless proven otherwise.
Majeure. Neither party is liable for any default or delay in the
performance of any of its obligations under this Agreement (other than
failure to make payments when due) if such default or delay is caused,
directly or indirectly, by forces beyond such party's reasonable control,
including, without limitation, fire, flood, acts of God, labor disputes,
accidents, interruptions of transportation or communications, acts of
war, supply shortages or the failure of any third party to perform any commitment
relative to the production or delivery of any equipment or material
required for such party to perform its obligations hereunder.
Third-Party Beneficiaries. Except as otherwise expressly provided in this
Agreement, nothing in this Agreement is intended, nor shall anything
herein be construed to confer any rights, legal or equitable, in any
Person other than the parties hereto and their respective successors and
permitted assigns. Notwithstanding the foregoing, Customer acknowledges
and agrees that any supplier of third-party supplier that is identified
as a third-party beneficiary in the Service Description, is an intended
third-party beneficiary of the provisions set forth in this Agreement as
they relate specifically to its products or services and shall have the
right to enforce directly the terms and conditions of this Agreement with
respect to its products or services against Customer as if it were a
party to this Agreement.
Regulations. Customer may not export, re-export, transfer or make
available, whether directly or indirectly, any regulated item or
information to anyone outside the United States in connection with this
Agreement without first complying with all export control laws and
regulations which may be imposed by the United States government and any
country or organization of nations within whose jurisdiction Customer
operates or does business.
Customer agrees that during the term of this Agreement OldOak.net may
publicly refer to Customer, orally and in writing, as a customer of OldOak.net.
Any other public reference to Customer by OldOak.net requires the written
consent of Customer.
- Definitions. For purposes of
this Agreement, the following terms have the meanings specified below:
means each contract created between OldOak.net and Customer for the
provision of Services consisting of the Service Agreement, the
application Service Description(s), the then-current Acceptable Use
Policy, and these Terms of Service.
Content" means all data, graphics, text, names, marks, logos,
hypertext links to other Web sites and other information incorporated in,
transmitted through or published or displayed on the Customer Web site.
Web site" means Customer's site on the World Wide Web portion of the
Internet that OldOak.net hosts under this Agreement.
User" means any Person who accesses or uses the Customer Web site
via the Internet.
Technology" means OldOak.net's proprietary technology, including,
without limitation, OldOak.net services, software tools, hardware
designs, algorithms, software (in source code and object code forms),
user interface designs, architecture, class libraries, objects and
documentation (both printed and electronic), network designs, know-how,
trade secrets and any related intellectual property rights throughout the
world (whether owned by OldOak.net or licensed to OldOak.net from a third
party), and also including any derivatives, improvements, enhancements,
updates, modifications or extensions of OldOak.net Technology conceived,
reduced to practice or developed during the term of this Agreement by
means any individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated association or organization, or
government or any agency or political subdivision thereof.
Information" means all technical, business and other information of
a party (i) that is not generally known to the public, (ii) that derives
value, economic or otherwise, from not being generally known to the
public or to other Persons who can obtain value from its disclosure or
use, and (iii) which information is subject to efforts that are
reasonable under the circumstances to maintain the secrecy thereof.
means the Order submitted by the Customer to OldOak.net for Services,
whether such Order is submitted online through OldOak.net's Web site or
on a written form such as a Service Agreement.
of Service" means these Terms of Service, as the same may be
modified, altered or amended from time to time by OldOak.net.
means the Service provided by OldOak.net in response to an Order whereby OldOak.net
provides the Customer with specified connectivity, storage space and
bandwidth for the hosting of a Customer Web site as more particularly
described in the applicable Service Description.
Description" means the applicable documents made available by OldOak.net
to Customer to describe the applicable Services at the time the Order is
accepted by OldOak.net.
If any clause
or provision herein shall be adjudged invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision, which shall remain in
full force and effect.