Terms and Conditions
Terms and Conditions for nelson.HOST Hosting Technology Services
The following terms and conditions (“Terms of Service”) apply to the provision of Nelsonhost LLC, (nelson.HOST) Hosting Technology Services (“Services”) and to the Customer who orders nelson.HOST Services (“Customer”)
1. ORDERING SERVICES
1.1 For purposes of these Terms of Service an order means (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by nelson.HOST for acceptance that describes the Services you are purchasing and the price of such Services, signed by Customer, either manually or electronically, and/or, (iii) your use of the Services, (“Order”).
1.2 Customer’s use of the Services is governed by these Terms of Service, which are incorporated by reference in the terms of your Order.
1.3 Customer’s use of the Services includes a representation that the individual placing the Order for Customer has the legal authority to enter into contractual commitments and make purchases for the Customer.
1.4 nelson.HOST’s obligation to begin providing Services is contingent on Customer’s satisfying nelson.HOST’s credit approval criteria. Further, nelson.HOST may, in its sole discretion, accept or reject any Order Customer submits.
1.5 The provision of the Services described in an Order constitutes nelson.HOST’s acceptance of the Order.
2. nelson.HOST OBLIGATIONS
nelson.HOST will provide Services to Customer subject to these Terms of Service.
3. CUSTOMER OBLIGATIONS
3.1 Customer agrees: (i) comply with applicable law and these Terms of Service, (ii) pay the fees for the Services when due, (iii) cooperate with nelson.HOST’s investigation of service outages and any suspected breach of these Terms of Service, and (iv) ensure your customer account information as it appears in the online control panel is true, accurate, and complete.
3.2 Customer may resell the Services, in compliance with the terms of these Terms of Service. Customer remains responsible for use of the Services by any third party to the same extent as if Customer were using the Services.
3.3 Customer is solely responsible for the security and content of all Customer data stored in nelson.HOST’s hosted environment and all such data is and at all times shall, remain Customer’s exclusive property (”Customer Data”).
3.4 Customer is solely responsible for: (i) determining the suitability of the Services in light of the type of Customer Data stored by you or your end-user(s); (ii) the use of nelson.HOST’s hosted environment tool and/or the Services by any of your employees or other user(s) who, either with or without Customer’s authorization, gain access to the hosted environment; and (iii) taking all commercially reasonable steps to mitigate the risks inherent in transmitting Customer Data to and from and while stored on the hosted environment using the Services, including any Customer Data loss or corruption.
3.5 Customer shall encrypt at the application level all data, considered sensitive data, which must be treated as confidential under state or federal law or under Customer’s contractual obligations to others. Sensitive data includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
3.6 nelson.HOST is responsible for implementing a backup schedule for Customer’s website and for storing thost backups offsite for a period not to exceed three (3) months. nelson.HOST shall not be responsible for incomplete or corrupted backups. The Customer has the ability to remove of modify backup schedules; if the Customer chooses to do this, then nelson.HOST is no longer responsible for maintenance of backups for Customer’s website.
3.7 Customer is responsible for selecting and securing the appropriate authentication procedures to allow access to Customer’s account. Customer is not authorized to provide account access, passwords, or passphrases for nelson.HOST technical support to any third party.
3.8 Customer shall only use or allow the use of the Services in compliance with the terms of paragraph 4, (Acceptable Use) of these Terms of Service.
3.9 Customer shall promptly notify nelson.HOST of any data breach or unauthorized access to nelson.HOST’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with nelson.HOST’s investigation and resolution of the reported breach or unauthorized access.
4. ACCEPTABLE USE
4.1 Customer shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
4.2 Customer is responsible for all acts and omissions of its users in connection with receipt or use of the Services. Customer agrees, and will ensure its users agree, to act responsibly and not use the Services for any illegal or unauthorized purpose including, but not limited to:
a. Hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using malware, spyware, copyrighted infringement under the Digital Millennium Copyright Act (“DMCA”), trademark infringement, sharing illegal software, and any unauthorized use of images, internet accounts or computers or any activity that would violate the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003.
b. For the purposes of Acceptable Use, the term Spamming includes, but is not limited to: (i) sending unsolicited outbound bulk email regardless of the content; (ii) Junk mail; (iii) unsolicited commercial email; (iv) unsolicited instant messaging; (v) unsolicited mobile phone messaging advertising; (vi) email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner and (vii) mailing lists without closed-loop (“Confirmed Opt-in”), subscription confirmation without retained messages and/or unsubscribe links.
c. Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
d. Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network.
e. Intentionally or recklessly introducing any virus or other contaminating code into the nelson.HOST hosted environment.
f. Collecting or using information, including email addresses, screen names or other identifiers, by deceit, (such as, phishing, Internet scamming, password robbery, spidering, and harvesting).
g. Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting.
h. Distributing software that covertly gathers or transmits information about a user.
i. Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, and forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses.
j. Interference with service to any user of the nelson.HOST hosted environment including, without limitation, mail bombing, flooding, or deliberate attempts to overload a system and broadcast attacks.
k. Any action that directly or indirectly results in any of nelson.HOST’s IP space being listed on any abuse database (i.e. Spamhaus).
l. Conducting any gambling activity in breach of the terms paragraph 4.1.
m. Distribution or any other use of copyrighted material not owned by Customer or Customer’s end-user.
n. Any action that is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to nelson.HOST.
o. Content that incites violence, threatens violence, is excessively violent, or contains harassing content or hate speech.
p. Any action that results in Customer’s official listing on the Register of Known Spam Operations (ROKSO) database maintained at https://www.spamhaus.org/rokso/
q. Use of public proxies, Internet Relay Chat (IRC), or any application layer protocol when utilized to mask activities defined as malicious within these terms.
r. Content that could be described as pornography or sexually explicit.
4.3 Customer may not use any shared system provided by nelson.HOST in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. Note: the use of more than 10,000 inodes per GB on any account may result in a warning, and if no action is taken to reduce the excessive use of inodes, your account may be suspended.
4.4 Customer agrees that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
5. TERMINATION FOR VIOLATION OF ACCEPTABLE USE
5.1 nelson.HOST has the right to investigate potential violations of paragraph 4. If nelson.HOST determines that a breach has occurred, then nelson.HOST may, in its sole discretion:
a. Restrict Customer’s and its users’ access to the Services;
b. Remove or require removal of any offending Content;
c. Terminate this Agreement for cause;
d. Exercise any other rights and remedies it may have, at law or in equity.
5.2 Except in an emergency or as may otherwise be required by law, before undertaking the actions in paragraph 5.1, nelson.HOST will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify nelson.HOST of any event or circumstance related to this Agreement, Customer’s or any user’s use of the Services, or content of which Customer becomes aware, that could lead to a claim or demand against nelson.HOST, and Customer will provide all relevant information relating to such event or circumstance to nelson.HOST at nelson.HOST’s request.
6. TERM AND RENEWAL
6.1 Term. The initial term for each Order begins on the effective date stated in an Order or, if no effective date is stated, the initial term shall be begin on the date nelson.HOST makes the Services available for Customer’s use (“Effective Date”) and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be three (3) months. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of three (3) month each, unless and until either party gives the other a written notice of non-renewal prior to the expiration of the initial term (or then-current renewal term, as applicable, following the process in 6.2 below.
6.2 Cancellation/Non-Renewal. Customer may give notice of non-renewal or cancellation by logging in to their account on nelson.host/account and submitting a cancellation ticket. No other form of cancellation will be effective and the agreement for services is automatically renewed each period until such notice of cancellation ticket is provided.
7. BILLING AND ACCOUNT SET-UP
7.1 nelson.HOST will charge Customer and Customer agrees to pay when due the fees for the Services in accordance with its Order. Unless other payment methods have been approved, nelson.HOST will charge Customer’s credit card monthly, with invoice, beginning on the Effective Date and continuing on the same date each successive period until the end of the term. Customer shall pay all applicable taxes arising from Customer’s use of Services or Customer’s payment of amounts due to nelson.HOST under the Order.6.2 Cancellation/Non-Renewal. Customer may give notice of non-renewal or cancellation by logging in to their account on nelson.host/account and submitting a cancellation ticket. No other form of cancellation will be effective and the agreement for services is automatically renewed each term until such notice of cancellation ticket is provided.
7.2 nelson.HOST may increase fees for the Services provided under an Order upon thirty days advance written notice as follows:
a. For Services provided on a quarter-to-quarter term, nelson.HOST may increase fees effective the first day of the next month following the notice period.
b. For services provided over a term greater than three months, nelson.HOST may increase fees for the services provided under an Order as of the first day of the next renewal term beginning more than thirty (30) days from the date following the notice period.
7.3 nelson.HOST may suspend all Services (including services provided under multiple Orders or other contracts with Customer) if charges to Customer’s credit card or other payment facility are rejected, or Customer fails to make payment by an agreed upon alternative payment method. nelson.HOST may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%).
7.4 In the event nelson.HOST brings a legal action or engages a collection agency to collect Customer’s unpaid balances, Customer will be liable for payment of all reasonable costs of collection, including legal fees and court costs. Any “credit” that nelson.HOST may owe Customer, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund.
7.5 Refunds and Guarantees:
a. Refunds for prepaid Services will be given for full months only in accordance with the terms of the applicable Service Level Agreement.
b. To be eligible for a refund or claim a SLA guarantee, Notice of cancellation must be given before the month in question begins. Setup fees are not refundable. The cost of domain will be deducted from the money refunded if the user’s domain was registered via nelson.HOST’s domain.
7.6 If there is a dispute with respect to any portion of an invoice, Customer shall pay the undisputed portion of the fees when due and provide written details specifying the basis of any disputed portion of the invoice.
7.7 Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate.
7.8 Customer authorizes nelson.HOST to obtain a credit report on Customer at any time during the term of an Order.
8. SUSPENSION OF SERVICES
8.1 nelson.HOST may suspend some or all of the Services without liability to Customer if Customer (i) fails to pay the applicable fees for the Services when due (ii) the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of these Terms of Service; (iii) Customer fails to cooperate with an investigation of any suspected breach of the Acceptable Use provisions of these Terms of Service; (iv) nelson.HOST reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer’s consent, or (v) suspension of services is reasonably necessary to protect nelson.HOST’s hosting environment and/or its customers.
8.2 nelson.HOST will provide Customer reasonable advance notice of a suspension based on a violation of these Terms of Service and a chance to cure the violation on which the suspension is based, unless nelson.HOST determines, in its reasonable commercial judgment, that an immediate suspension is necessary to protect nelson.HOST’s network and its customers’ data from an imminent, significant operational, network integrity or security risk.
8.3 Suspensions based on Customer’s breach of these Terms of Service will not relieve Customer’s obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this paragraph will be terminated upon Customer’s cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days from the date on which the breach occurred, the suspension may be treated as a termination for Cause. If Customer’s Services are compromised, then Customer must resolve the cause of the compromise before nelson.HOST will reinstate service.
8.4 In the case that Service is suspended for Customer’s breach of these Terms of Service nelson.HOST shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. nelson.HOST may at its own discretion allow access to a suspended account.
9. TERMINATION FOR CAUSE
9.1 Customer may, upon written notice, terminate an Order for breach of these Terms of Service if nelson.HOST (i) materially fails to provide the Services as agreed and does not remedy that failure within fifteen (15) days of your written notice describing the failure; (ii) materially fails to meet any other obligation stated in the Order and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure.
9.2 nelson.HOST may, upon written notice, terminate an Order if Customer (i) provided materially inaccurate or incomplete information for the purpose of obtaining the Services; (ii) Customer did not have the legal right or authority to enter the Order; (iii) Customer fails to make payment of any invoiced overdue amount within five (5) Business Days of our written notice of delinquency; (iv) Customer made payment arrangements via credit card or other third party, and the third party refuses to honor or reverses nelson.HOST’s charges; (v) Customer is in breach of the Acceptable Use provisions of these Terms of Service and (v) Customer fails to comply with any other obligation stated in the applicable Order and does not remedy the failure within fifteen (15) days of nelson.HOST’s written notice to Customer describing the failure.
9.3 Either party may terminate an Order with immediate effect on written notice if the other party (or we reasonably believe that the other party) (i) is unable to pay its debts; (ii) enters into compulsory or voluntary liquidation; (iii) convenes a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an “Insolvency Event”). Notwithstanding anything to the contrary in the Order, the fees for the Services shall become due immediately upon the occurrence of an Insolvency Event.
10. HOSTING SERVICES/TECHNICAL SUPPORT/LIMITED WARRANTY
10.1 nelson.HOST will provide all hosting Services in accordance with Services described at the time of Order.
10.2 nelson.HOST technical support services are provided via support ticket
10.3 nelson.HOST technical support is available only to its Customers.
10.4 nelson.HOST has no support obligation to any other party.
10.5 Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
10.6 nelson.HOST has no obligation to provide security other than as expressly stated in the agreement or order.
10.7 Some of the Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the legal and regulatory requirements applicable to you and your use of the Services, and for selecting and using those Services in a manner that complies with your obligations under the Agreement and the applicable legal and regulatory requirements.
10.8 nelson.HOST personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. nelson.HOST makes no representation or warranty whatsoever regarding products and services that are not purchased from nelson.HOST or produced/manufactured by nelson.HOST. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
10.9 A specific nelson.HOST user account typically called ‘dannynelson’ will be present on all nelson.HOST Websites for the purpose of managing and supporting the Website.
11. PRODUCT SALES TERMS
11.1 Customer acknowledges that nelson.HOST is reselling (and not itself providing) products purchased by customer including, without limitation, hardware, software and/or software licenses (“Product(s)”).
11.2 nelson.HOST shall pass through to Customer, the manufacturer’s warranties for each Product and agrees to facilitate utilization of manufacturer’s product return policies. In no event will nelson.HOST provide product return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).
11.3 Customer acknowledges the terms and conditions governing the use of such Products shall be solely between Customer and the manufacturer.
11.4 Customer will not use the Products sold by nelson.HOST for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Customer agrees that nelson.HOST is not liable, in whole or in part, for any claim or damage arising from use of such Products.
11.5 Customer will obtain all licenses, permits and approvals for the use of the Services or Products, which may be required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
12. BANDWIDTH PACKAGES
Bandwidth usage for bundled bandwidth packages, for Internet data transfer, will be calculated based upon outgoing bandwidth transfer. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is free of charge. If your actual data transfer usage exceeds the amount of your bandwidth package you will be charged a bandwidth overage fee in addition to your Bundled Bandwidth Charge. The bandwidth overage fee is subject to rates set monthly.
13. WARRANTY DISCLAIMERS
13.1 nelson.HOST DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, INCLUDING IMPLIED TERMS CONDITIONS OR WARRANTIES RELATING TO SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13.2 ALL SERVICES PROVIDED BY nelson.HOST ARE ON AN “AS IS” BASIS AND nelson.HOST MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PROVISION OF SUCH SERVICES.
14. LEFT INTENTIONALLY BLANK
15. SCHEDULED MAINTENANCE AND DOWNTIME
15.1 nelson.HOST will use its commercially reasonable efforts to provide services 24 hours a day, seven days a week.
15.2 Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including:
a. Periodic maintenance procedures or upgrades (“Scheduled Downtime”)
b. Service malfunctions, and causes beyond nelson.HOST’s control or which are not reasonably foreseeable by nelson.HOST, including the interruption or failure of telecommunications or digital transmission links.
c. Hostile network attacks, or network congestion or other failures.
15.3 nelson.HOST is not responsible for any downtime caused by conditions specified in 15.2 or due to Customer’s actions that breach any term of this Order.
15.4 Except for daily maintenance, nelson.HOST will provide a minimum of 48 hours advance notice to the Customer for non-emergency maintenance or Scheduled Downtime, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers.
16. INDEMNITY
16.1 Customer agrees to indemnify and hold nelson.HOST, and each of its directors, officers, employees, shareholders and agents (each an “Indemnified Party”) harmless from any and all damages, liabilities, fines, penalties, losses and/or claims of whatsoever kind or nature, arising from the Customer’s use of nelson.HOST’s hosted environment or the Services.
16.2 nelson.HOST may from time to time, at the request of the Customer, be enlisted to perform server administration tasks on Customer hardware, which is co-located at a nelson.HOST facility (“Remote Hands Service”). Customer agrees and holds nelson.HOST harmless against any damage caused to Customer in the performance of Remote Hands Service.
17. EXPORT
Customer represents and warrants:
a. That Customer is not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to which nelson.HOST is legally prohibited from providing the Services.
b. Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any Information or technical data provided by nelson.HOST under these Terms of Service or any Order or agreement in which they are incorporated in any manner which would cause nelson.HOST to breach any applicable export control laws, rules, or regulations.
c. Customer represents, and warrants without limitation, that it will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations.
18. PROMOTIONAL USE
Customer grants nelson.HOST a non-transferable, non-exclusive license to utilize Customer trademarks and logos for nelson.HOST promotional materials.
19. OWNERSHIP OF SERVICES/INTELLECTUAL PROPERTY
19.1 No work or professional services performed and/or provided by nelson.HOST under this Order shall be deemed to be “Work For Hire” and shall remain at all times the sole property of nelson.HOST. For so long as Customer is not in default on any obligation under these Terms and Conditions, nelson.HOST grants Customer a non-exclusive, non-transferable license to use the work product of such services. Such license terminates upon the termination of the applicable Order or agreement pursuant to which they were performed.
19.2 All software that is provided to Customer is subject to these Terms of Service and any Order or agreement in which they are incorporated including software that we may authorize you to install on devices located outside of our data center. Customer shall not use any software provided by nelson.HOST after the expiration or termination of these Terms of Service or any Order or agreement in which they are incorporated.
19.3 Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide you.
19.4 Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software we provide for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do so and then following at a minimum of ten (10) days’ advance written notice to nelson.HOST. Any additional restrictions, which may apply to software we utilize in the performance of the Services, will be specified in the applicable Order.
19.5 Where specifically prohibited, Customer shall not mix software license ownership when utilizing nelson.HOST services. In such cases, where the Customer provides all licensed products, including the OS, all licenses must be provided by the Customer and may not be mixed with nelson.HOST licensed products. Requirements vary by software vendor.
20. LIMITATION OF DAMAGES AND LIABILITY
EXCEPT AS OTHERWISE PROVIDED IN AN APPLICABLE SERVICE LEVEL AGREEMENT, nelson.HOST’S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM. FOR REMOTE MANAGEMENT OF CUSTOMER’S ENVIRONMENT AND/OR nelson.HOST WEBSITE SERVICES, THE TOTAL LIABILITY OF nelson.HOST FOR THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS SHALL NOT EXCEED AN AMOUNT EQUAL TO THE MOST RECENT SIX MONTH’S BASE CHARGE FOR THE SERVICE (S) THAT IS THE BASIS FOR THE PARTICULAR CLAIM. nelson.HOST WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF nelson.HOST HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
21. NO WAIVER
The failure of either party to insist upon strict performance of any of the provisions of these Terms of Service will not be deemed a waiver of any breach or default. The remedies provided to nelson.HOST hereunder are not a waiver of the remedies of nelson.HOST under applicable law.
22. LIMITATION OF ACTION
The Customer may bring no action, regardless of form, arising out of or relating to an Order, more than three (3) months from the date on which the cause of action accrues. The parties expressly agree that this part, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto. All periods of limitation otherwise applicable to actions by nelson.HOST remain as provided by law.
23. DISPUTE RESOLUTION
All disputes between nelson.HOST and a Customer shall be determined by a final and binding arbitration conducted by the American Arbitration Association pursuant to its then current commercial arbitration rules. The arbitrator shall decide any dispute in accordance with South Carolina law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in or near Anderson County, South Carolina, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.
24. CONFIDENTIAL INFORMATION
Information designated as confidential by either nelson.HOST or Customer, whether before or after the effective date of these Terms of Service shall be held in strict confidence and used only for purposes of these Terms of Service. Except as required by law, no Confidential Information shall be disclosed without the prior written consent of the party designating the information as confidential. If either party is legally required to disclose any confidential information of the other party, the party so required shall notify the other party immediately and shall cooperate in seeking a reasonable protective order. This Section shall not apply to information, which is (i) in the public domain, (ii) already known to the recipient, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.
25. SEVERABILITY
If any provision of these Terms of Service is unenforceable as a matter of law, all other provisions will remain in effect.
26. EXCUSABLE DELAY
nelson.HOST will not be liable for any delay or failure of performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics or other circumstances beyond nelson.HOST’s control.
27. BINDING TERMS AND CONDITIONS
27.1 These Terms and Conditions are incorporated in Customer’s Order by reference to nelson.HOST’s website https://nelson.host/tos. In the event nelson.HOST revises the Terms of Service on its website, those revisions will be effective as to an Order that we accepted prior to the date nelson.HOST posted the revision upon the Effective Date of Customer’s next billing cycle following notification to the Customer of the revised Terms of Service.
27.2 By opening an account, or by the use of any nelson.HOST service, the Customer agrees to be bound by these Terms and Conditions.
28. NO PARTNERSHIP
The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other; neither party has the right to bind the other to any agreement with a third party.
29. ASSIGNMENT AND SUBCONTRACTING
Neither party may assign an Order in whole or in part without the prior written consent of the other party, provided however, nelson.HOST may assign an Order in whole or in part to an affiliate with sufficient financial standing in order to meet its obligations under the Order or as part of a bona fide corporate reorganization or a sale of its business, and we may transfer your Confidential Information as part of any such transaction. nelson.HOST may use affiliates and third party service providers to perform all or any part of the Services, but nelson.HOST remains responsible to you under the Order for Services performed by its Affiliates and third party service providers to the same extent as if nelson.HOST performed the Services.