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Mineral™ Hosting Terms

  1. Order, Acceptance and Service.
    • a. Mineral will provide, and Customer will purchase and pay for, the Services selected on the Order Now Form (the "Form") for the service fee specified in the Form (the "Service Fee").
    • b. In connection with any Hosting Services, if Customer uses storage space in excess of the storage limits established in the Service Description, Mineral may, without limiting its other rights or remedies, assess Customer with the additional potential fees referenced in the Service Description.
    • c. In connection with any Hosting Services, if Customer's actual bandwidth usage in any month exceeds the limit in the Service Description, Customer will pay Mineral the additional fees specified in the Service Description.

  2. Fees, Taxes and Payment.
    Customer will pay to Mineral the Service Fees in the manner set forth in the Order. Mineral may increase the Service Fees (i) in the manner permitted in these Hosting Terms and (ii) at any time on or after expiration of the Initial Term (twelve months) by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Mineral's net income). All such taxes will be added to Mineral'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. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. If any undisputed invoice is not paid within 45 days after the date of the invoice, Mineral may charge Customer a late fee of $15 for such invoice; in addition any amounts payable to Mineral 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. Delinquent accounts may be suspended at Mineral's sole discretion. In the event of a suspension of the Services, upon a reactivation request by Customer, Customer shall pay Mineral a reactivation fee in addition to full payment of the outstanding balance due. Reactivation of services will only be performed during Mineral's normal business hours (Monday through Friday, 9:30am - 6:00 p.m., Pacific Time, excluding holidays). If Mineral is forced to collect any payment due at law or through an attorney at law or under advice therefore or through a collection agency, or if Mineral prevails in any action to which the Customer and Mineral are parties, Customer will pay all reasonable costs of collection, arbitration and litigation, including, without limitation, all reasonable court costs and Mineral's reasonable attorneys' fees. If any Customer payment is returned for insufficient funds Mineral will impose a processing charge of $25. If two or more Customer payments are returned for insufficient funds in any 6-month period, Mineral in its sole discretion may require alternative payment methods for all future Customer payments including, without limitation, credit card, money order, or cashier's check.

  3. Term and Termination.
    • a. Hosting Services will commence on the Effective Date indicated in the Form and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one month periods unless the Order is earlier terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
    • b. Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party 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 the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party 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 party's assets.
    • c. Mineral may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if Mineral determines in good faith that Customer's use of the Customer Website or the Customer Content violates the Acceptable Use Policy (attached below).
    • d. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 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 parties shall each remain liable to the other 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 Mineral may be entitled.
    • e. With respect to Non-Prepaid Plans, within 30 days after the termination of this Agreement, Customer will pay the Termination Charge to Mineral unless (i) Mineral terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). With respect to Prepaid Plans, Customer will pay the Termination Charge as provided in the Service Description. The parties agree that the Termination Charge constitutes consideration for Mineral's time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 3(b), or if Mineral terminates the Order under Sections 3(c)(i) or 12(c), Mineral shall return to Customer, and Customer shall accept, as Customer's sole and exclusive remedy for Mineral's breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination and/or any Service Fees paid for periods in which Mineral breached this Agreement.

  4. Customer's Representations and Warranties.
    Customer hereby represents and warrants to Mineral, and agrees that during the Term Customer will ensure that: (a) 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 Mineral to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) 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; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Website and will use the Customer Website only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for business purposes and not for any family, household or personal use.

  5. License to Mineral.
    Customer hereby grants to Mineral a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: (a) 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 (b) make archival or back-up copies of the Customer Content and the Customer Website. Except for the rights expressly granted above, Mineral is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.

  6. Customer's Responsibilities.
    • a. 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 Website.
    • b. Customer will cooperate fully with Mineral in connection with Mineral's performance of the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Mineral's performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Mineral of any change in Customer's mailing address, telephone, e-mail or other contact information.
    • c. Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Website and any goods or services described therein, as well as any rules, terms or conditions of use.
    • d. Customer will provide Mineral with a registered domain name for the Customer Website, or, upon Customer's request Mineral will register an Internet domain name on behalf of Customer.
    • e. Because the Hosting Services permit Customer to electronically transmit or upload content directly to the Customer Website, Customer shall be fully responsible for uploading all content to the Customer Website and supplementing, modifying and updating the Customer Website. Specifications for the hardware and software used by Mineral to provide the Hosting Services will be available on Mineral's Website. Customer shall periodically access Mineral's Website to determine if Mineral has made any changes thereto. Mineral shall not be responsible for any damages to the Customer Content, the Customer Website or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Website to be compatible with the hardware and software used by Mineral to provide the Hosting Services.
    • f. Unless the applicable Service Description provides otherwise, Customer is solely responsible for making back-up copies of the Customer Website and Customer Content.

  7. Mineral Intellectual Property.
    • a. Mineral hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Mineral Technology solely for the purpose of accessing and using the Services. Customer may not use the Mineral Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Mineral to Customer any Mineral Technology, and all rights, titles and interests in and to the Mineral Technology shall remain solely with Mineral. 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 Mineral Technology (except as needed in order for Customer to use the Services).
    • b. Mineral's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Mineral. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Mineral. Mineral shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Mineral to Customer. Mineral may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
    • c. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Mineral relating to the Services will be treated as being non-confidential and non-proprietary. Mineral may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

  8. Limited Warranty.
    • a. Mineral 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 Mineral 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 Mineral within 30 days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Mineral's sole obligation, for breach of the foregoing warranties shall be for Mineral, 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. Mineral may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
    • b. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Mineral's reasonable control; (ii) that resulted from any actions or inactions of Customer; or (iii) that resulted from Customer's equipment.
    • c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, MINERAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE 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 MINERAL 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. MINERAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

  9. Limitation of Liability.
    • a. IN NO EVENT WILL MINERAL'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO MINERAL BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
    • b. MINERAL CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. MINERAL 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.
    • c. 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 10 AND 11) 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.
    • d. The limitations contained in this Section 9 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 9(c) shall not apply to liability arising on account of a party's breach of Section 12 or to Customer's indemnification obligations under Section 10 or Mineral's indemnification obligations under Section 11.

  10. Indemnification of Mineral.
    Customer shall defend, indemnify and hold harmless Mineral, 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 "Mineral 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 Mineral Indemnities may suffer, incur or sustain, though no fault of any Mineral Indemnitee, resulting from or arising out of (i) Customer's breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content or the Customer Website, (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 Website, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by or on behalf of Mineral, (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 Website to be compatible with the hardware or software used by Mineral to provide the Services, including any damage to Mineral's servers or other hardware caused thereby.

  11. Indemnification of Customer.
    • a. Subject to Section 10, Mineral shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any patent, copyright or trademark, or that Mineral has 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 Mineral 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 Mineral, but Mineral will not be liable for any costs or expenses incurred without its prior written authorization not to be unreasonably withheld or delayed.
    • b. Promptly 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 Mineral, provided that failure to give or delay in giving such notice to Mineral shall not relieve Mineral of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Mineral shall have sole control of the defense, and of all negotiations for settlement (for monetary damages only) 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.
    • c. If an injunction, decree or judgment is, or Mineral 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, Mineral 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 Customer.
    • d. Notwithstanding Section 11(a), Mineral assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services provided by Customer (versus Mineral) where the third-party products or services cause the infringement, (ii) any modification of the Services by Customer not authorized by Mineral in writing, or (iii) the Customer Content, the Customer Website or any content, data or information provided or supplied by an End User. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF MINERAL, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.

  12. Confidentiality; Non-Solicitation.
    • a. 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 12(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 other 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.
    • b. Notwithstanding Section 12(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate 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 developed independently by receiving party without the use of the Proprietary Information.
    • c. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party may 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 seek injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall, upon the other party's request, promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
    • d. 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 Mineral performing services under this Agreement, while such employee is employed by Mineral; provided, however, Customer may engage in general solicitations of employment not specifically targeted to attract employees of Mineral.

  13. Optional Services.
    In connection with any Optional Services:
    • a. Customer must provide Mineral with any information, login identifications, passwords or other information or access to facilities that Mineral may reasonably require to provide the Optional Services. Mineral will have no responsibility for any delays or increased costs or expenses associated with Customer's failure to provide any of such information. If Customer does not provide any such information or access requested by Mineral within fifteen (15) days of Mineral's request therefore, Mineral may terminate the Order and retain any Service Fees paid.
    • b. If Customer requested that Mineral perform the Optional Services by a particular deadline or that Mineral achieve some particular result or outcome, Mineral will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Mineral's ability to perform the Services is subject to Customer's provision of information and access as provided above and (ii) Mineral has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.
    • c. If Customer wishes to convey documents or files to Mineral, Customer should deliver to Mineral a copy or duplicate of such documents or files and not the original copy.
    • d. Mineral will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Mineral's provision of Optional Services requested by Customer.

  14. Miscellaneous.
    • a. Independent Contractor. Mineral and Customer are independent contractors and nothing contained in this Agreement places Mineral and Customer in the relationship of employer and employee, principal and agent, master and servant, partners or joint ventures. 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.
    • b. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California, except that all arbitration and related proceedings conducted pursuant to Section 14(c) below, shall be governed by the Commercial Arbitration Rules of The American Arbitration Association. . . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 14(C) BELOW MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND 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.
    • c. Mandatory Arbitration. Notwithstanding Section 14(b) above, each party agrees that (except as provided in connection with the indemnification obligations of Section 10 and Section 11) any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Los Angeles, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
    • d. Headings. The headings herein are for convenience only and are not part of this Agreement.
    • e. Entire 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 Mineral, 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 Mineral. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto.
    • f. Severability. 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 effect.
    • g. 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 or upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, , to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by sending a notice in writing (which may include a writing sent via e-mail) to the other party as provided herein.
    • h. 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.
    • i. Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Mineral. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Mineral 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; provided, however, Mineral shall remain primarily liable for its obligations hereunder despite any such assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
    • j. Limitation of Actions. Except in the case of indemnification under Section 10 or Section 11, no action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
    • k. Counterparts. This Agreement 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.
    • l. Force 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, acts of war or terrorism, interruptions of transportation or communications, 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.
    • m. No 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. n. Government Regulations. Customer may not export, re-export, transfer or make available, 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.
    • o. Marketing. Customer agrees that during the term of this Agreement Mineral may publicly refer to Customer, orally and in writing, as a customer of Mineral. Any other public reference to Customer by Mineral requires the written consent of Customer.
    • p. Telephone Monitoring. To ensure Mineral's customers receive quality service, Mineral randomly selects phone calls for monitoring. These calls, between Mineral's customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner. Mineral has been properly licensed by the California Public Service Commission to use such service observing equipment.

  15. Definitions.
    For purposes of this Agreement, the following terms have the meanings specified below:
    • a. "Agreement" means the Hosting Order attached above together with these Mineral Hosting Terms.
    • b. "Customer Content" means all data, graphics, text, names, marks, logos, and hypertext links to other Websites and other information incorporated in, transmitted through or published or displayed on the Customer Website.
    • c. "Customer Website" means Customer's site on the World Wide Web portion of the Internet that Mineral hosts under this Agreement.
    • d. "End User" means any Person who accesses or uses the Customer Website via the Internet.
    • e. "Mineral Technology" means Mineral's proprietary technology, including, without limitation, Mineral 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 Mineral or licensed to Mineral from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Mineral Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
    • f. "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
    • g. "Proprietary Information" means all technical, business and other information of a party that is identified as confidential or proprietary, excluding that certain information described in Section 12(b).
    • h. "Order" means the Hosting Order attached above.
    • i. "Prepaid Plan" means Hosting Service provided by Mineral to Customer where the Order provides that the Customer must pay for the Hosting Service in advance for the Initial Term. "Non-Prepaid Plan" means any Hosting Service provided by Mineral to Customer that is not a Prepaid Plan.
    • j. "Termination Charge" means, with respect to Non-Prepaid Customers only, as of any date of calculation, an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term.
    • k. "Service" means either Hosting Service or Optional Service. "Hosting Service" means the Service provided by Mineral in response to an Order whereby Mineral provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer Website as more particularly described in the applicable Service Description. "Optional Service" means any additional Service (other than Hosting Service) Mineral may provide in response to an Order, as more particularly described in the applicable Service Description.
    • l. "Service Description" means the Services described in the Order together with any applicable documents made available by Mineral to Customer to describe the applicable Services in more detail.
    • m. "Term" means the duration of this Agreement between Mineral and Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 3. With respect to Optional Services, the "Term" begins when Mineral accepts the Order and ends on the first to occur of (i) Mineral's completion of performance, or (ii) the earlier termination of this Agreement in any manner permitted herein.

MINERAL(TM) ACCEPTABLE USE POLICY

  1. Introduction.
    This Acceptable Use Policy (AUP) sets forth the principles that govern the use by Customers of the web-based products and services provided by Mineral. This AUP is designed to help protect our customers, and the Internet community, from irresponsible, abusive or illegal activities.

  2. General Violations.
    The following constitute violations of this AUP (meaning those actions which create denial of access or impediment of Services):
    • a. Illegal use. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
    • b. Harm to minors. Using the Services to harm, or attempt to harm, minors in any way.
    • c. Threats. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that threatens or encourages bodily harm or destruction of property.
    • d. Harassment. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that harasses another.
    • e. Fraudulent activity. Using the Services to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as "pyramid schemes," "Ponzi schemes," and "chain letters."
    • f. Forgery or impersonation. Adding, removing or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged headers or other identifying information is prohibited.
    • g. Unsolicited commercial email/bulk email. Using the Services to transmit any unsolicited commercial email or unsolicited bulk email. Activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email whether or not that email is commercial in nature are prohibited.
    • h. Unauthorized access. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Mineral's or another entity's computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
    • i. Copyright or trademark infringement. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
    • j. Collection of personal data. Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
    • k. Reselling the services. Reselling the Services without Mineral's authorization.
    • l. Network disruptions and unfriendly activity. Using the Services for any activity, which adversely affects the ability of other people or systems to use Mineral Services or the Internet. This includes "denial of service" (DoS) attacks against another network host or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited. It is the Customer's responsibility to ensure that their network is configured in a secure manner. A Customer may not, through action or inaction, allow others to use their network for illegal or inappropriate actions. A Customer may not permit their network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner.
    • m. Traffic and Unknown Third Parties. Using the Services to route or relay traffic between unknown third parties or as a source of denial of service attacks, worms, or other service sending traffic to unknown third parties; any such traffic may be de-prioritized, throttled, or otherwise restricted without notice.

  3. Enforcement.
    Mineral reserves the right to monitor Internet access to Services by authorized Customers as part of the normal course of its business practice. Should we discover Customers engaged in Violations as outlined above, which create denial of access or impediment of service, and which adversely affect Mineral's ability to provide Services, we reserves the right to temporarily suspend Customer access to the Mineral Host Server and/or Database Mineral shall make written/electronic notification to Customer point of contact of any temporary suspension, and the cause thereof, as soon as reasonably possible. This temporary suspension will remain in effect until the Violations have ceased.

  4. Revisions to this Acceptable Use Policy.
    Mineral reserves the right to revise, amend, or modify this AUP, our Hosting Terms and our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with the Internet Service.



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