B & G Technologies Acceptable Use Policies (AUP)
Any complaints about a client’s violation of the AUP should be sent to abuse@bgtech.com.au As a provider of Internet access, website hosting, and other Internet-related services, B & G Technologies respects that the Internet provides a forum for free and open discussion and dissemination of information; however, when there are competing interests at issue, B & G Technologies reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, B & G Technologies has developed these Acceptable Use Policies (AUP), which supplement and explain certain terms of each client’s respective service agreement and is intended as a guide to the client’s rights and obligations when utilizing B & G Technologies services. This AUP will be revised from time to time. A client’s use of B & G Technologies services after changes to the AUP are posted on B & G Technologies website, constitutes the customer’s acceptance of any new or additional terms of the AUP that result from those changes. In addition, B & G Technologies and its clients are responsible for adhering to the AUP of B & G Technologies upstream providers which include the following:
Violation of an upstream provider by a B & G Technologies Client may result in the provider refusing to provide connectivity for that client.
One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet’s openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When clients obtain information through the Internet, they must keep in mind that B & G Technologies cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that clients may acquire. For this reason, the client must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because B & G Technologies cannot monitor or censor the Internet, and will not attempt to do so, B & G Technologies cannot accept any responsibility for injury to its clients that results from inaccurate, unsuitable, offensive, or illegal Internet communications.
When clients disseminate information through the Internet, they also must keep in mind that B & G Technologies does not review, edit, censor, or take responsibility for any information its clients may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Because the information they create is carried over Secured Servers’ network and may reach a large number of people, including both clients and non-clients of Secured Servers, clients’ postings to the Internet may affect other clients and may harm B & G Technologies goodwill, business reputation, and operations. B & G Technologies is also bound by the AUPs of its up-line providers and may have to take action regarding a Client in order to comply with the up-line AUP. For these reasons, clients violate B & G Technologies policy and the service agreement when they, their customers, their affiliates, or their subsidiaries engage in the following prohibited activities:
Unsolicited Bulk Email (UBE):
Sending unsolicited bulk and/or commercial messages over the Internet (also known as “spamming”) is prohibited. This practice is harmful not only because of its negative impact on consumer attitudes toward B & G Technologies, but also because it can overload B & G Technologies network and disrupt service to B & G Technologies clients. Maintaining an open SMTP relay is likewise prohibited. Both “opt in” and “double opt in” bulk mailing are prohibited. When a complaint is received, B & G Technologies has the discretion to determine from all of the evidence whether the client has violated this policy, and in its sole discretion may terminate a client’s account. Significant spam complaints within the first month of service will result in immediate service suspension.
Intellectual Property Violations:
Engaging in any activity that infringes or misappropriates the intellectual property rights of others is prohibited. This includes copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Engaging in activity that violates privacy, publicity, or other personal rights of others is likewise prohibited. B & G Technologies is required by law to remove or block access to client content upon receipt of a proper notice of copyright infringement or other violations of the law. It is also B & G Technologies policy to terminate the privileges of clients who commit repeat violations of copyright laws.
Obscene Speech or Materials:
Using B & G Technologies network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is prohibited. In addition, B & G Technologies is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through B & G Technologies network.
Defamatory or Abusive Language:
Using B & G Technologies network as a means to transmit or post defamatory, harassing, abusive, or threatening language is prohibited.
Forging of Headers:
Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message is prohibited.
Illegal or Unauthorized Access to Other Computers or Networks:
Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”) is prohibited. Any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity) is likewise prohibited.
Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities:
Distributing information regarding the creation and sending of Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks is prohibited. Activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment are likewise prohibited.
Facilitating a Violation of the AUP:
Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate B & G Technologies AUP is prohibited. This includes the facilitation of the means to Spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.
Export Control Violations:
Exporting encryption software over the Internet or otherwise, to points outside the Australia and the United States is prohibited.
Usenet Groups:
B & G Technologies reserves the right not to accept postings from newsgroups where we have actual knowledge or reasonably believe that the content of the newsgroup violates this AUP.
Illegal Activities:
Engaging in activities that are determined to be illegal is prohibited. This includes but is not limited to false advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.
Your use of the service is at your sole risk. B & G Technologies is not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on B & G Technologies hardware.
Other Activities:
Secured Servers does not provide services without prior express written permission to clients offering the following services :
Video Streaming (including Tube web sites)
Live Streaming (Webcams, sporting events)
Content Delivery Networks (CDN)
File Hosting Web sites
Clients engaging in activities, whether lawful or unlawful, that B & G Technologies determines to be harmful to its clients, operations, reputation, goodwill, or customer relations is prohibited. B & G Technologies may contact the account owner to determine the respective URLs associated with the account. Failure to provide the URL information may result in the immediate termination of services.
Responsibility for avoiding the harmful or illegal activities is the responsibility of the client. When B & G Technologies becomes aware of harmful activities, it may take any action to stop the harmful activity. This includes, but is not limited to, requiring the removal of information, shutting down a website, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate. B & G Technologies is aware that many of its clients are, themselves, providers of Internet services, and that information reaching B & G Technologies facilities from those clients may have originated from a customer of the client or from another third-party. B & G Technologies has the right to directly take action against a customer of a client. Secured Servers may also take action against the B & G Technologies client because of activities of a customer of the client, even though the action may affect other customers of the client. Similarly, B & G Technologies anticipates that clients who offer Internet services will cooperate with B & G Technologies in any corrective or preventive action that B & G Technologies deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of B & G Technologies policy.
B & G Technologies is also concerned with the privacy of on-line communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. Therefore, as a matter of prudence, B & G Technologies urges its clients to assume that all of their on-line communications are insecure. B & G Technologies cannot take any responsibility for the security of information transmitted over B & G Technologies ‘ facilities.
B & G Technologies will not intentionally monitor private electronic mail messages sent or received by its clients unless required to do so by law, governmental authority, or when public safety is at stake. B & G Technologies may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. B & G Technologies may also disclose information including, but not limited to, information concerning a client, a transmission made using our network, or a website, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request. B & G Technologies assumes no obligation to inform the client that client information has been provided, and in some cases may be prohibited by law from giving such notice. Finally, B & G Technologies may disclose client information or information transmitted over its network where necessary to protect B & G Technologies and others from harm, or where such disclosure is necessary to the proper operation of the system.
B & G Technologies expects that its clients who provide Internet services to others will comply fully with all applicable laws concerning the privacy of on-line communications. Failure on the part of a client to comply with those laws violates B & G Technologies policy. Finally, B & G Technologies emphasizes that in signing the service agreement, clients indemnify B & G Technologies for any violation of the service agreement, law, or B & G Technologies policy that results in loss to Secured Servers or the bringing of any claim against B & G Technologies by any third-party. This means that if any legal action is brought against B & G Technologies because of a client’s or customer of a client’s activity, the client will pay any damages awarded against B & G Technologies, plus costs and reasonable attorneys’ fees.
We hope the AUP is helpful in clarifying the obligations of Internet users, including B & G Technologies and its clients, as responsible members of the Internet. Any complaints about a client’s violation of the AUP should be sent to abuse@bgtech.com.au
Services Agreement
B & G Technologies (BGTECH) and Client agree that this Agreement, any and all Addendums hereto, and any and all related Service Orders which are incorporated herein by reference constitute the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, written or oral regarding such subject matter.
This Agreement shall be effective from the date the first Service Order is accepted by B & G Technologies and will automatically terminate in the event there are no active Addendums or Service Orders hereto.
Client agrees to pay B & G Technologies for services B & G Technologies provides based on the terms and conditions of the Addendums and/or Service Orders relating to each service.
In the event there is a conflict between this Agreement and any of its Addendums, the order of precedence will be:
1.This Services Agreement
2.All Addendums and Attachments in the order of last signed (most current)
3.Each Service Order
4.The Acceptable Use Policy (AUP)
1. Definitions
When used in this Agreement and its Addendums, the following definitions apply unless a specific definition is applied to and in any Addendum or attachment:
Agreement:This Services Agreement and all Addendums and attachments regardless of the effective dates of those Addendums and attachments
Client: The company or individual contracting with B & G Technologies in order to utilize one or more of B & G Technologies various services as indicated on the Addendums hereto.
Database: Any and all information received from Client which B & G Technologies keeps in an electronic format for B & G Technologies ‘ use. This may include at B & G Technologies sole discretion a file containing only the Client’s information and/or a universal file containing all of B & G Technologies ‘ Clients’ information.
Website: The website(s) owned by Client to which this Agreement and its Addendums apply.
2. Additional Services
B & G Technologies may provide some services such as reporting and tracking as a no charge service. B & G Technologies reserves the right to stop providing these added services at any time for any reason. B & G Technologies reserves the right to begin charging for these additional services at any time, and B & G Technologies also reserves the right to offer new services that are not covered by this Agreement wherein additional charges could incur should the Client choose to use them.
3. Database Ownership
Both parties own their own databases and nothing in this agreement is intended to transfer that ownership. B & G Technologies reserves the right to transfer its database in the event of a change in B & G Technologies ownership.
Any unauthorized attempt to gain access to B & G Technologies database or systems by the Client, or anyone directly or indirectly associated or related to the Client, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, B & G Technologies may immediately terminate this Agreement, and the Client will immediately return to B & G Technologies all copies of any information obtained by this access.
4. Termination for Cause
B & G Technologies may terminate either (a) this Agreement, (b) any Addendums or (c) all, immediately, if the Client is the subject of a bankruptcy order, become insolvent, make any arrangement or composition with or assignment for the benefit of creditors, go into voluntary or compulsory liquidation, have a receiver or administrator appointed over the Client’s assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the Client.
The Client also agrees to abide by the Terms and Conditions of this Master Services Agreement, each Addendum, and B & G Technologies Acceptable Use Policies (AUP). B & G Technologies reserves the right to manually or electronically review Client’s website(s) to ensure there are no violations of the Terms and Condition or the AUP.
B & G Technologies employees and those of related companies have entered into an agreement to protect the companies’ confidential and trade secret information even after their employment. The Client agrees that it would be difficult for B & G Technologies to enforce this agreement if the Client were to hire an employee or a former employee and it would be difficult for the employee to abide by the terms of the agreement. The Client therefore agrees that the Client will not hire or enter into a contract of any kind with a current or former B & G Technologies or related company employee for a period of 24 months following the effective date of that employee’s last date of employment with B & G Technologies or any related company without B & G Technologies written prior approval.
5. Privacy Policy
The Client understands that B & G Technologies Privacy Policy in part reads, “By using B & G Technologies services, the Client agrees that we may release information obtained in the course of the client’s use of B & G Technologies services when it is believed, in B & G Technologies sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients”.
6. Taxes
B & G Technologies and the Client both agree to pay any and all taxes that are imposed on B & G Technologies or the Client’s respective business. If B & G Technologies is required to pay taxes for the Client, the Client will immediately reimburse B & G Technologies for those taxes and any fines, penalties and interest.
7. Authorization
By signing or accepting this Agreement the Client is stating that the Client is the owner, operator, and/or a designated officer of the business, with the authority to enter in to this Agreement, and have obtained all the necessary licenses, copyrights and/or certificates required to perform the Client’s obligations. The Client will follow all laws and legal regulations that relate to the Client’s business regardless of where those laws and regulations originate, and will comply with any laws and regulations that may apply in the future.
8. Limitations of Liability
B & G Technologies WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE, BUT B & G Technologies MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, B & G Technologies DOES NOT WARRANT THAT B & G Technologies APPLICATIONS WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR, OR DEFECT; OR THAT ANY REVENUE TO CLIENT WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, B & G Technologies DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.
B & G Technologies cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. B & G Technologies will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. B & G Technologies will not be liable to the Client or any of the Client’s customers for any claims or damages which may be suffered by the Client or the Client’s customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client’s website as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by B & G Technologies fault or negligence. B & G Technologies will not be responsible for the Client’s venue not being accessible on the Internet due to circumstances not under B & G Technologies direct control such as individual Internet user’s own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations.
Upon ten (10) days notice to the Client, B & G Technologies may discontinue any service, or may require fulfillment of additional conditions B & G Technologies may choose to impose as a prerequisite for continuing any service. However, B & G Technologies may discontinue service immediately for fraud committed by the Client or the Client’s employees, illegal activity, or violations of its Acceptable Use Policies (AUP) and/or its other policies.
B & G Technologies liability to the Client and any end user of the service or any other of its services is limited to the amount paid to and received by B & G Technologies for service not accepted. In no event will B & G Technologies be liable to the Client, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if B & G Technologies has been advised of the possibility of such damage.
9. Indemnification
The Client is solely responsible for the Client’s content, advertising and promotion, and that of anyone referring others to the Client’s website. The Client is also responsible for insuring that the Client is the rightful owner or licensee for any copyrighted material, trademarks, or items that appear on the Client’s website.
The Client will take all necessary measures to preclude B & G Technologies from being made a party to any lawsuit or claim regarding the service provided to or by the Client, or any end user. The Client hereby agrees to indemnify B & G Technologies and hold B & G Technologies harmless from any and all claims of whatever nature brought by any anyone against B & G Technologies in excess of the remedy set forth herein.
The Client hereby agree to reimburse B & G Technologies for any and all expenses including legal fees associated with B & G Technologies being involved with any civil, criminal, regulatory or investigatory actions brought by the Client or against the Client by anyone, including expenses associated with providing information that B & G Technologies in its sole discretion, believes it legally must provide or has been authorized by the Client to provide. The Client also understand and agree that B & G Technologies will deduct those expenses from monies due to the Client and the Client agree to reimburse B & G Technologies for any expense that exceeds what B & G Technologies is able to deduct from the Client’s account.
10. Relationship of Parties
Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Client will have no authority to make or accept any offers or representations on our behalf. The Client will not make any statement, whether on the Client’s site or otherwise, that reasonably would contradict anything in this Section. Neither party is the agent of the other, and B & G Technologies expressly disclaims responsibility for any conduct by the Client in violation of our terms of Agreement.
11. Proprietary Rights, Security, Confidentiality, and Access
Client and B & G Technologies mutually agree that:
1. Client owns and has absolute control over any content, design, material of any kind, and operation of Client’s website and nothing in this Agreement or its Addendums and Attachments is intended to transfer that ownership or control to B & G Technologies
2. Each party owns (or has uncontested legal rights to) their own intellectual property, content, databases, systems, trade secrets, trademarks, patents software, and applications and that nothing in this Agreement transfers any rights to these to the other. B & G Technologies hereby provides a limited license to use without modification or alteration any of the software and or applications provided under this Agreement and Client agrees to return or destroy all copies that may be in the Client’s possession upon termination of this Agreement and /or any Addendums to this Agreement.
3. B & G Technologies and Client each hereby agree to hold each other’s Proprietary Information in strict confidence and not to disclose such Proprietary Information to any third party without the prior written consent of the other party. Further, each party shall use the same degree of care it uses, but no less than a standard of reasonable care, with respect to its own Proprietary Information to prevent the unauthorized disclosure to a third party; provided, however, that the foregoing restriction shall not apply to information that is (a) known to the receiving party without restriction when received; (b) obtained from a source other than the originating party without breach of another confidentiality agreement; (c) in the public domain when received or thereafter enters the public domain through no fault of the receiving party; (d) disclosed by the originating party without restriction; or (e) disclosed by the receiving party pursuant to statute, regulation of the order of a court of competent jurisdiction, provided that the receiving party has notified the originating party in order to permit the taking of appropriate protective measures.
4. Any attempt to gain access to B & G Technologies Databases or systems or those of its Service Providers by Client, or anyone directly related to Client, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, B & G Technologies may immediately terminate this Agreement, and Client will immediately return to B & G Technologies all copies of any information obtained by this access.
5. If B & G Technologies becomes subject to a claim from a third party of patent, trademark, or copyright infringement, arising from Client’s Content or system, Client will indemnify the B & G Technologies for all costs associated with a judgment imposed against B & G Technologies pursuant to the infringement claim.
6. Any use of the trade name and/or trademarks of the other party in advertising or in any media as part of a “Client list” or “supplier” list must be done so with the prior approval, in writing, from the effected party.
7. B & G Technologies and its Service Providers will not allow use of information from the Database by any third party for purposes other than those services provided by B & G Technologies and it’s Service Providers in accordance with this Agreement.
12. Payment
Client agrees that payment terms for the various services provided under this agreement may vary by service. Except for H-Series Products, B & G Technologies will strive to provide a single invoice each month that combines the charges for all of the services provided, but cannot guarantee that that can always be accomplished. H-Series Product clients agree to allow B & G Technologies to charge the Client’s credit card in advance each month. Client agrees to pay all invoices within the time specified in the Addendum to this Agreement for each service provided by B & G Technologies. Client also agrees that if Client utilizes a Transaction Processing Service supplied by a company associated with B & G Technologies, that company may deduct payment for all B & G Technologies services provided under this agreement from the weekly check from the transaction settlement before remitting the payment to client.
13. Term
This Agreement will continue until terminated by either party under the provisions above. B & G Technologies may terminate this Agreement immediately and without notice if the Client violates the terms of this Agreement, it’s Acceptable Use Policies (AUP), its policies, or the law. B & G Technologies may, at its sole discretion, suspend or cancel services for the Client’s account if it stays inactive for any consecutive ninety (90) day periods. Reinstatement of the Client’s account, after suspension or cancellation, will require B & G Technologies approval.
14. Force Majeure
The parties’ obligations under this Agreement are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the aforesaid, if a Force Majeure Event takes place and a party is materially hindered in the performance of its obligations under this Agreement or its normal business operations are delayed or become impossible, then, without limiting the hindered party’s rights, the hindered party shall have the option, by giving the other party written notice, to suspend its obligations hereunder for the duration of any such contingency provided that such hindered party shall promptly upon discovery of the Force Majeure Event, use its commercially reasonable efforts to recommence performance of the affected obligations or provide an acceptable alternative to such services, provided that no such suspension shall exceed three (3) months. If any such suspension exceeds three (3) months, the non-hindered party shall have the right to terminate this Agreement at any time on written notice to the hindered party. No Force Majeure Event shall relieve a party of its payment obligations of any outstanding invoices and for services rendered prior to any Force Majeure Event hereunder by B & G Technologies.
15. Invalid or Unenforceable Provisions
If any provision of this Agreement or its Addendums is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Client and B & G Technologies agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.
16. Choice of Law: Venue
This Agreement is governed by and construed under the laws of the State of Victoria and Australia. The federal and state courts of Victoria will have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement.
17. Disputes
A.General. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled first, by good faith efforts of the parties to reach mutual Agreement, and second, if mutual Agreement is not reached to resolve the dispute, by final, binding arbitration as set out in paragraph (B) below.
B.If there is a dispute, controversy, claim and/or disagreement concerning the interpretation, application or enforcement of or in any way arising under this Agreement or breach of this Agreement, B & G Technologies and Client shall work together in good faith to resolve such disputes within thirty (30) days from the date of the disputed incident. If B & G Technologies and Client fail to resolve a dispute within the aforementioned thirty (30) day period, either party may submit the dispute to arbitration. The arbitration will take place in Phoenix, Arizona before a single arbitrator under the auspices of the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules currently in effect at that time. Disputes must be submitted to arbitration prior to any state, federal or international court action. Arizona law will be applied in the arbitration and any other subsequent legal hearings.
C.The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators, may be entered in any court having jurisdiction thereof.
D.Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party will be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
E. Injunctive Relief. The foregoing notwithstanding, each party shall have the right to seek injunctive relief in an applicable court of law or equity pending resolution of the dispute in accordance with the foregoing.
18. Entire Agreement; Modifications
This Agreement and any Addendums and/or attachments and/or service orders hereto set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. The terms and conditions of this Agreement are posted at http://www.bgtech.com.au/?page_id=176. B & G Technologies reserves the right to change these terms and conditions by posting such changes at http://www.bgtech.com.au. Continued use of B & G Technologies service by Client following such changes constitutes acceptance by Client of the current terms and conditions.
19. Notice
Per applicable Service Order.
20. Assignment
Neither B & G Technologies nor Client shall assign this Agreement or any interest therein, without the prior written consent of the other party, except in the event of the sale of all or the majority of either party’s stock or assets or in the event of other corporate reorganizations, which consent shall not be unreasonably withheld or delayed. Any assignment prohibited hereby shall be null and void.
21. Changes
For the Client’s own protection, the Client understands and agrees that B & G Technologies will only accept changes and modifications to this Agreement or any Addendums that are in writing and signed by the individual(s) signing this Agreement. In the event of changes in ownership of Client or, website(s) covered by this Agreement, the Client must notify B & G Technologies in writing of the change of ownership. B & G Technologies may then require the new owner to execute a new Agreement and Addendums with B & G Technologies.
22. Partial Invalidity
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. We agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
ADDENDUM A
Hosting Addendum
Subject to B & G Technologies ‘ Master Services Agreement including all Addendums, Attachments, Service Orders, and Acceptable Use Policies (AUPs); B & G Technologies will provide the following services under the terms and conditions outlined herein.
1. Order Acceptance; Payment
All orders are subject to acceptance by B & G Technologies. You will receive email confirmation of B & G Technologies acceptance of the Client’s order. B & G Technologies may refuse to accept any order. Such refusal may not be unreasonable, however, and we agree to provide the Client with notice via email or fax of any intent to delay or decline the acceptance of any order. Client agrees to pay all charges in advance for the service selected by the Client in the Customer Order Information form that is incorporated in these terms and conditions by reference including all monthly fees, additional product charges and optional charges incurred by the Client. Payment may be made by check, ACH, or credit card. Client hereby authorises us to automatically charge any amounts the Client owes to B & G Technologies to any credit card provided by the Client. You also agree that if this Addendum becomes effective at any time after the 1st of the month, B & G Technologies may prorate the next invoice to reflect a full month’s charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month.
Bandwidth usage above the minimum specified in the Customer Order Information Form is automatically billed for the month the usage occurs in the month following the usage. If B & G Technologies provides notice of a price increase, the Client may cancel this Addendum if within the 30 day notification period, the Client notifies B & G Technologies of the Client’s intent to cancel because of the increase.
Payment for service will be made in AUD dollars to B & G Technologies. The initial payment is due with this Addendum in the amount specified in Customer Order Information form or at the time of signing up for the H-Series products. If payment in full of any invoice is not received by B & G Technologies within thirty (30) days of invoice date, B & G Technologies may impose a debt service charge amounting to one and one-half percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid or the maximum allowed by law which ever is lower. In the event that any amount remains unpaid for thirty (30) days after the date of the invoice, B & G Technologies may at its discretion discontinue, withhold, or suspend service.
2. Servers
A. Shared Servers
B & G Technologies will provide shared server hosting based on the information in the applicable Service Order Form and this Addendum. Your use of B & G Technologies shared hosting services constitutes your agreement that you have read and agree to these Terms & Conditions and in the event of your breach of this agreement you agree that B & G Technologies may take whatever actions necessary to satisfy any monies owed to B & G Technologies including preventing the removal of any of your content residing on B & G Technologies server.
B. Dedicated Servers
B & G Technologies will provide its standard server configuration or, B & G Technologies will build a server to the Client’s specifications as specified by the Client in the applicable Service Order. In either case, B & G Technologies will charge the Client a one time lease fee based on B & G Technologies cost of the components of the server as quoted to the Client at the time of the Client’s order. You do not own this server. B & G Technologies is not responsible for any down time or damages resulting from server maintenance or the lack there of. B & G Technologies does not guarantee 24×7 maintenance and repair. B & G Technologies is not responsible for monitoring the condition of the server, or automatically performing preventive maintenance of any kind. You are responsible for notifying B & G Technologies of any server problems and must authorize B & G Technologies to perform the required maintenance and repair. B & G Technologies at the Client’s request, may provide (but has in no obligation to do so) the Client with a quote before performing on call maintenance or repair. Additional servers not included on the applicable Service Order will be ordered on subsequent Service Orders which will become addendums to this agreement upon acceptance by both parties.
1.) Server Upgrades
At the Client’s request, B & G Technologies may provide (but has in no obligation to do so) the Client with a quote to upgrade the Client’s server. Upgraded servers including the upgraded components remain the property of B & G Technologies.
2.) Maintenance and Monitoring
B & G Technologies may provide (but has in no obligation to do so) a monitoring and repair service for a fixed monthly fee as quoted in the Service Order. This service will include 24×7 monitoring of the server and response to problems, and all parts and labor to restore the server to operating standards. B & G Technologies will exert its best efforts to resolve any problems as quickly as possible however; B & G Technologies cannot guarantee that a problem can be resolved within a specific period of time. Whether or not the Client uses B & G Technologies monitoring or repair service, the Client is required to maintain a current back-up copy of the Client’s server in case it becomes necessary for B & G Technologies or the Client to restore the Client’s server. B & G Technologies does not back-up the Client’s server.
3.) Server Impounding
You agree that B & G Technologies has the right to hold the Client’s server(s) (including all software and contents) until B & G Technologies is paid in full for all outstanding amounts the Client owes.
4.) Server Buyout
At the Client’s request, B & G Technologies may provide (but has no obligation to do so) the Client with a quote for the Client’s cost to buy the Client’s server.
1.) Server Upgrades
At the Client’s request, B & G Technologies may provide (but has in no obligation to do so) the Client with a quote to upgrade the Client’s server. Upgraded servers including the upgraded components remain the property of B & G Technologies until the Client have paid for them.
2.) Maintenance and Monitoring
B & G Technologies may provide (but has in no obligation to do so) a monitoring and repair service for a fixed monthly fee as quoted in the Server Order Form. This service will include 24×7 monitoring of the server and response to problems, and all parts and labor to restore the server to operating standards. B & G Technologies will exert its best efforts to resolve any problems as quickly as possible however; B & G Technologies cannot guarantee that a problem can be resolved within a specific period of time. Whether or not the Client uses B & G Technologies monitoring or repair service, the Client is required to maintain a current back-up copy of the Client’s server in case it becomes necessary for B & G Technologies or the Client to restore the Client’s server. B & G Technologies does not back-up the Client’s server.
3.) Server Impounding
You agree that B & G Technologies has the right to hold the Client’s server(s) (including all software and contents) until B & G Technologies is paid in full for all outstanding amounts the Client owes.
3. Duties of Secured Servers
B & G Technologies will provide the service selected by the Client in the applicable Service Order.
4. Acceptable Use Policy
B & G Technologies will impose an Acceptable Use Policy regarding the Client’s use of its service. You agree to impose such policies on the Client’s customers to the extent necessary to ensure compliance. The current policy can be found at http://www.bgtech.com.au. B & G Technologies may change any policy without prior notice to the Client. Violation of any provision of the Acceptable Use Policy (AUP) by the Client or the Client’s clients can result in the immediate termination of the Client’s service without notice.
5. Term and Termination
This Addendum becomes effective upon acceptance the initial Service Order by B & G Technologies It is for an initial term as specified in the applicable Service Order beginning from the date of B & G Technologies acceptance. After the initial term this Addendum will automatically renew on its anniversary date for twelve (12) months. Either party may terminate this Addendum at the end of the initial term or each subsequent term by so notifying the other in writing no less than one (1) day prior to the renewal date. All cancellations must be received in writing according to the above deadlines and the Master Services Agreement. On cancellation, the Client is responsible to remove the Client’s equipment and systems from the service.
ADDENDUM B
Hosting Addendum
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1. Proprietary Rights, Security, Confidentiality, and Access
Client hereby grants B & G Technologies a limited license to use client’s company name and/or logo in marketing materials that identify client as a client of B & G Technologies. Client reserves the right to rescind this license at any time upon written notification to B & G Technologies.
2. Payment
Client agrees to pay all charges in advance for the A-Series products and services selected by the Client in the B & G Technologies Service Order including all monthly fees and additional product charges incurred by the Client. Payment may be made by credit card, debit card, or PayPal account and Client hereby agrees to allow B & G Technologies to charge the Client’s credit card, debit card, or PayPal account in advance each month.
All payments are due on the monthly anniversary of the initial payment under this Agreement. Client hereby authorises B & G Technologies to automatically charge Client’s credit card, debit card, or PayPal account for charges that apply to Client’s account. Recurring charges will be posted to Client’s account until this agreement is terminated by either party as specified in Paragraph 3 below. Client is responsible for directly updating or notifying B & G Technologies of any changes to Client’s credit card including, but not limited to, card number, expiration date, billing address, or card status. In the event B & G Technologies‘ billing is declined B & G Technologies reserves the right to immediately suspend service and has no obligation to notify Client in advance of such suspension.
Accounts that are five (5) days past due will be automatically suspended. Accounts that are eight (8) days past due may have all the data on the hosting account deleted. All past due and unpaid balances are subject to collection. In the event of collection, client will be liable for costs of collection including attorney’s fees, court costs, and collection agency fees. B & G Technologies is not responsible for lost data due to account suspensions.
3. Term and Termination
This Addendum becomes effective upon acceptance the Service Order by B & G Technologies. It is for an initial term as specified in the applicable Service Order beginning from the date of B & G Technologies acceptance. After the initial term this Addendum will automatically renew monthly until canceled. B & G Technologies reserves the right to change its prices at the time of any renewal of a Service Order. Either party may terminate this Addendum at the end of the initial term or each subsequent term by so notifying the other in writing or email at billing@SecuredServers.com. On cancellation, the Client is responsible for removing the Client’s equipment and systems from the service.
Cancellation requests must be received by B & G Technologies prior to the end of the current Billing Cycle. Cancellations submitted later than this time will result in automatic renewal of this agreement. Cancellations become effective on the day received by B & G Technologies. B & G Technologies is unable to cancel an account effective at a future date. B & G Technologies will confirm the cancellation request when it is processed. If Client does not receive a confirmation, please contact B & G Technologies as soon as possible. B & G Technologies does not monitor, and will not automatically cancel, plans for problems not directly related to B & G Technologies provision of services. Cancellation of services does not relieve the customer from paying any outstanding balance owed on the account. B & G Technologies reserves the right to cancel any account, at any time, without notice, for any reason B & G Technologies considers appropriate.
4. Statements
B & G Technologies does not mail paper invoices or statements.
5. Refund Policy
Prorated refunds of prepaid services will not be provided.