Terms of Service
1 Services Provided
FullControl Network, Inc. (“FullControl Network”) provides Internet connectivity
services (“Bandwidth”), certain equipment used in Internet connectivity services
(“Hardware”), and licensing of the associated operating systems, web server software
and other proprietary software of FullControl Network (“Software”), in addition
to other services set forth in the server plan created by Client (Bandwidth, Hardware,
Software and all other services provided by FullControl Network are collectively
referred to herein as “Services”). FullControl Network desires to provide Services
to Client, and Client desires to receive and compensate FullControl Network for
those Services, as more specifically set forth in Client’s Server Plan Order Form
incorporated herein by this reference (“Service Order”).
2 Services and Service Orders
2.1 Service Order(s).
Client shall use the then current version of the Service Order as designated by
FullControl Network. The Service Order shall be subject to the terms and conditions
of the Agreement. In the event any provisions contained in a Service Order conflict
with any terms, conditions or clauses contained in this Agreement, the provisions
of this Agreement shall control.
2.2 Service Order Change Form.
FullControl Network and Client may agree to execute one or more service order change
forms (“Service Order Change Forms”) at any time and from time to time after the
date of this Agreement. Each such Service Order Change Form shall be incorporated
into this Agreement and shall become a hereof and any reference herein to Service
Orders shall hereby include any Service Order Change Forms. In the event of any
discrepancies between any Service Order Change Forms, the one with the most recent
date shall control. Nothing is this Section or any other provision of this Agreement
shall obligate FullControl Network to agree to any Service Order Change Form. FullControl
Network shall have the absolute right to refuse any proposal to change the terms
of this Agreement, as they exist now or at any time in the future.
2.3 Client System Administrator.
System administration is not included in the Services provided by FullControl Network
to Client under this Agreement. Client is solely responsible for all management
of the server. FullControl Network will provide Client with server and will install
operating system software provided by Client as indicated on the Service Order.
Client agrees to install any updates and patches to the operating system.
2.4 IP Addresses.
FullControl Network may designate for Client’s use on a temporary basis the number
of Internet Protocol Address (“IP Addresses”) specified on the Service Order from
the address space assigned to FullControl Network. Client acknowledges that the
IP Addresses are the sole property of FullControl Network, and are temporarily designated
for Client’s use as part of the Services, and are not portable. FullControl Network
reserves the right to change the IP Addresses designations at any time. FullControl
Network shall use reasonable efforts to minimize inconvenience to Client resulting
from such changes, and shall give the Client reasonable notice of changes. Client
agrees that it will have no right to use IP Addresses assigned to FullControl Network
upon termination of this Agreement, and that any change in IP Addresses Client may
need to make after termination of the Agreement shall be the sole responsibility
The Service Order sets forth the monthly amount of Bandwidth to be provided by FullControl
Network to Client under this Agreement. Client is solely responsible for monitoring
its Bandwidth consumption. If Client’s Bandwidth usage exceeds the amount set forth
on the Service Order, Client hereby authorizes FullControl Network to charge the
credit card number provided on the Service Order for additional block of Bandwidth
equivalent in size to that originally purchased. The rates for additional Bandwidth
shall be as published on FullControl Network’s website. In the event that a credit
card charge for excess Bandwidth fails or is denied for any reason, FullControl
Network may suspend any or all Services to the Client. If Client has not provided
a credit card number for payment of the Services provided hereunder, Client must
pay any excess Bandwidth fees in advance to avoid a suspension of all or part of
the Services. Any suspension of Services does not release Client from its payment
obligations for the Initial Term or any applicable Renewal Term.
3 Term and Renewal
This Agreement will begin on the date it is accepted by FullControl Network and
will continue automatically for additional terms equal to the Initial Term (each,
a “Renewal Term”) until either party provides written notice at least seven (7)
days prior to the end of the Initial Term or Renewal Term, as applicable, that it
has elected not renew this Agreement, unless earlier terminated according to the
provisions of Section 9 below. For security reasons and the general protection of
all Clients, FullControl Network requires all notices not to renew the Agreement
be delivered by postal mail or by faxing a cancellation request to the current fax
phone number published on the FullControl Network website, containing the account
name and number, password, reason for cancellation and signature of Client.
4 Limited Warranties
4.1 30-Day Money Back Guarantee.
FullControl Network hereby extends an unconditional money back guarantee to Client
during the first thirty (30) days of the Initial Term (“30-Day Guarantee”). This
30-Day Guarantee shall begin on the date that the server release notification is
e-mailed or faxed to Client and expires thirty calendar days thereafter. In order
to avail itself of the 30-Day Guarantee, Client must notify FullControl Network
by faxing a request, on Client’s letterhead, with cancellation, all Services shall
be terminated and any fees paid, excluding Set-Up fees, shall promptly be returned
in the form of a check to Client at the address provided on the Service Order.
4.2 Availability Guarantee.
FullControl Network ensures Internet connectivity is provided to Client 100% of
the time and, as set forth below FullControl Network will credit Client's account
if FullControl Network fails to meet this network uptime guarantee during any given
calendar month. At Client's request, FullControl Network will calculate Client Network
Unavailability ("CNU") in a calendar month. CNU consists of the number of minutes
that the network was not available to the Client, but will not include unavailability,
which Client fails to report to FullControl Network within five days, or any unavailability
resulting from (a) scheduled network maintenance, or (b) Client owned and/or maintained
circuits or equipment failure, or (c) Client's applications or equipment, or (d)
acts or omissions of Client, or (e) any use or user of the service authorized by
Client, or (f) reasons beyond the control of FullControl Network. For each cumulative
one half hour (30 minutes) of CNU in any calendar month, Customer's account shall
be credited for the pro-rated charges for one (1) day of the monthly fee, up to,
but not exceeding ten (10) days of the monthly hosting fee in any calendar month.
This does not include additional charges such as bandwidth overages.
4.3 Price Freeze Guarantee.
Provided Client is at no time in breach of this Agreement, FullControl Network hereby
agrees not to raise the fees set forth in a Service Order (“Price Freeze Guarantee”)
for a period of one (1) year.
5 Fees and Payments
Client shall pay all fees according to the prices and terms listed in this Agreement
and the Service Order. The prices listed in the Service Order will remain in effect
during the Initial Term and will continue thereafter. Except as provided in the
Prize Freeze Guarantee, FullControl Network may change the fees it charges Client
for Services upon thirty (30) days prior notice to the beginning of any Renewal
5.2 Payments and Late Payment Charge.
Payment for all Set-Up Fees (as set forth in the Service Order) shall be due at
the time the Service Order is accepted by FullControl Network. Fees for Services
shall be in the amount and frequency set forth in the Service Order (to begin on
the date that the server release notification is e-mailed or faxed to the Client)
(“Payment Date”). This Agreement is for the entire Initial Term or applicable Renewal
Term and Client is obligated to pay the fees for Services voluntarily selected by
Client. All such fees shall be received at FullControl Networks by 2:00 p.m. on
the Payment Date. Client shall pay a late charge of 2% per month, or the maximum
rate permitted by applicable law, whichever is less, on any unpaid amount for each
calendar month or fraction thereof that payments are in arrears to FullControl Network.
FullControl Network may send all fees not paid to a collection agency. Client agrees
to be responsible for paying all costs of collection, including, but not limited
to, reasonable attorney’s fees and, where lawful, collection agency fees. All accounting
issues should be addressed using the contact page on the FullControl Network website.
5.3 Checks or Money Order.
Client may pay fees by check or money order in U.S. dollars only. FullControl Network
will not accept international checks in foreign currency. In the event a check is
returned as not payable, Client will be assessed a $25.00 returned check fee. If
Client fails to pay all fees by the Payment Date, Client will be sent a suspension
of Services e-mail that will grant Client seven (7) days to make payment.
5.4 Credit Card.
Client may pay fees by MasterCard, Visa, American Express and Discover (“Credit
Cards”). Credit Cards shall be charged seven (7) days prior to the Payment Date
to the Credit Card number given at the time Client submits the Service Order. Payment
by Credit Card includes the authorization to charge all future recurring fees and
charges to the Credit Card on file with FullControl Network. If Client’s Credit
Card is denied, for any reason, Client will be sent a notice by e-mail. If payment
is not received by the Payment Date, FullControl Network may make one final attempt
to charge Client’s Credit Card on or around the Payment Date. If payment is not
secured by the Payment Date, Client will be sent a Suspension of Service e-mail
which will grant Client seven (7) days to make payment. In the event Client initiates
a charge back, FullControl Network may immediately suspend all Service to Client
until such time as full payment is received in addition to a $25.00 reactivation
5.5 Suspension of Services.
Failure of Client to fully pay any fees when due may be deemed a material breach
of this Agreement, justifying suspension of the performance of Services to Client
at FullControl Network’s sole option. Any such suspension of Services does not relieve
Client from the obligation to pay all amounts due FullControl Network under this
Agreement for the remainder of the Initial Term or then applicable Renewal Term.
In the event of a suspension of service, Client shall pay FullControl Network a
$50.00 suspension or service fee, and if reactivation is requested, a $150.00 reinstatement
fee in addition to full payment of the outstanding balance due. Reactivation of
services will only be performed during FullControl Network’s business hours (Monday
through Friday, 9:00am - 6:00pm Central Time, excluding holidays).
5.6 Pricing Disputes.
Client must notify FullControl Network in writing of any disputed charges within
thirty (30) days of the date of the billing for such charges. If Client does not
notify FullControl Network within that time period, Client has waived any right
to dispute such amounts, either directly or indirectly or collect amounts due to
Fees are exclusive of any and all sales, use, value added, excise, transfer, privilege,
duty and any other taxes or duties, whether international, national, state or local,
however under this Agreement; excluding, income taxes on profits which may be levied
against FullControl Network.
6 Software License and Rights
6.1 Software Licenses.
During the Initial Terms and any applicable Renewal Term, FullControl Network grants
Client a nontransferable, nonexclusive limited license to use the Software, in object
code form only, solely for purposes of using the Services on the Hardware. To the
extent such rights as it is able to under an agreement with extent such Software
belongs to a third party, FullControl Network only grants such rights as it is able
to under an agreement with applicable third party.
6.2 Software License Restrictions.
Client agrees that it will not, directly or indirectly and it will not allow others
to be involved in the following activities.
- Copy the software, except as is necessary to install on Hardware and for internal,
archival purposes. In the event Client makes any copies of the Software, Client
shall reproduce all proprietary notices on such copies.
- Reverse engineer, de-compile, dissemble, modify or otherwise attempt to derive source
code from the software.
- Sell, lease, license, transfer, give possession of, or sublicense the software or
the documentation to others.
- Write or develop any derivative or other software programs, based, in whole or in
part, upon the software or any Confidential Information.
6.3 Proprietary Rights.
Client shall not have any right, title, or interests in the Software, Hardware,
documentation, or any copyrights, patents or trademarks, embodied or used in the
connection therewith, except for the limited license provided in Section 6.1.
6.4 Propriety Rights of Client.
As between Client and FullControl Network, Content (defined below) shall remain
the sole and exclusive property of Client, including, without limitation, all copyrights,
trademarks, patents, trade secrets, and any other proprietary rights. Client hereby
grants to FullControl Network a non-exclusive, worldwide, royalty-free license for
the Initial Term and any Renewal Term to edit, modify, adapt, translate, exhibit,
publish, transmit, participate in the transfer of, reproduce, create derivative
works from, distribute, perform, display, and otherwise use Client Content as necessary
to render the Service to Client under this Agreement.
6.5 Use of Microsoft Software.
Client agrees to comply with FullControl Network's Terms and Conditions Regarding
Use of Microsoft Software (MSTERMS) as published on FullControl Network's website.
The MSTERMS is incorporated herein by the reference and may be updated from time
to time by FullControl Network in its sole discretion. Client acknowledges that
it has read and understands the current version of the MSTERMS and that Client has
an obligation to periodically review the MSTERMS from time to time.
7 Client Obligations
7.1 Content and Conduct.
Client is solely responsible for the content of any postings, data or transmissions
using the Services (the “Content”), or any other use of the Services by Client or
by any person or entity Client permits to access the Services (a “User”). Client
agrees to comply with all laws, rules, regulations and FullControl Network’s Acceptable
Use Policy (“AUP”) as published on FullControl Network’s website. The AUP is incorporated
herein by the reference and may be updated from time to time by FullControl Network
in its sole discretion. Client acknowledges that it has read and understands the
current version of the AUP and that Client has an obligation to periodically review
the AUP from time to time.
7.2 Safeguard Passwords.
Client is responsible for the security of passwords at all times and is encouraged
by FullControl Network to change passwords regularly.
8 Maintenance and Support
8.1 Maintenance and Support Services.
FullControl Network shall provide Client with those maintenance and/or support services
pursuant to the Support Plan set forth in the Service Order.
Under no circumstances shall FullControl Network be obligated to provide any maintenance
and support services arising out of (a) tampering, modifications, alterations, or
additions to the Hardware or Software undertaken by persons other than FullControl
Network or its authorized representatives; or (b) programs, software or hardware
supplied by client.
8.3 Client’s Responsibilities.
Client shall document and promptly report all errors or malfunctions of the Hardware
or Software to FullControl Network. Client shall take all steps necessary to carry
out procedures for the rectification of errors or malfunctions within a reasonable
time after such procedures have been received from FullControl Network. Client shall
maintain a current archive copy of all Software and data. Client shall properly
train its personnel in the use of the Hardware and Software.
9 Termination and Agreement
9.1 Termination upon Breach or Insolvency.
This Agreement may be terminated by either party upon written notice, (i) if the
other party breaches any obligation hereunder and the breaching party fails to cure
such breach within thirty (30) days after such notice, or (ii) if the other party
is the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization
or liquidation proceeding, makes an assignment for the benefit of creditors or admits
in writing its inability to pay debts when due. Notwithstanding the foregoing, this
Agreement may be terminated by FullControl Network at any time upon notice to Client
if Client fails to make any payment within fifteen (15) days after such payment
9.2 Termination for Client’s Breach of Section 7.1.
Notwithstanding Section 9.1 above, FullControl Network may immediately terminate
this Agreement if it is determined, in FullControl Network’s sole discretion, that
Client has breached Section 7.1 of the Agreement. Any termination under this section
shall take effect immediately and Client expressly agrees that it: (i) shall not
have any opportunity to cure, and (ii) shall not be entitled to a refund of any
fees paid to FullControl Network.
9.3 Rights and Remedies upon Termination.
In the event either party terminates the Agreement pursuant to Sections 9.1 or 9.2,
FullControl Network shall be entitled to immediately receive payment for all Services
incurred through the date of termination. In addition, it is agreed to that, if
Client is the breaching party, then FullControl Network will suffer damages that
would be difficult to ascertain. Therefore, Client agrees to pay FullControl Network
all amounts due hereunder for the remainder of the Initial Term or the applicable
Renewal Term as liquidated damages are not as a penalty. Such liquidated damages
shall be in addition to all other rights and remedies available to FullControl Network
in law and in equity which may be granted by a court of competent jurisdiction.
10 Confidential Information
Confidential Information shall mean all information identified by a party (“Disclosing
Party”) to the other party (“Receiving Party”), which is labeled as confidential
(“Confidential Information”). Confidential Information shall remain the sole property
of the Disclosing Party. Except for the specific rights granted by the Agreement,
the Receiving Party shall not use any Confidential Information of Disclosing Party
for its own benefit or for the benefit of others. Receiving Party shall not disclose
Confidential Information to any third party without written consent of Disclosing
Party (except to consultants who are bound by a written agreement with Receiving
Party to maintain confidentiality). Confidential Information shall exclude information
(i) available to the public other than by a breach of this Agreement; (II) rightfully
received from a third party not in breach of an obligation of confidentiality; (iii)
independently developed by Receiving Party without access to Confidential Information;
(iv) know to Receiving Party at the time of disclosure as evidenced by the written
records of Receiving Party at the time of disclosure; or (v) produced in compliance
with a court order. Receiving Party shall give reasonable notice to Disclosing Party
that Confidential Information is being sought by a third person, so as to afford
the opportunity to limit or prevent such disclosure. Receiving Party agrees to cease
using all Confidential Information, and to promptly return such Confidential Information
to Disclosing Party upon request. Notwithstanding the foregoing, Client consents
to FullControl Network’s disclosure of account information to credit reporting agencies,
credit bureaus, private credit reporting associations, or to other providers of
11 Limitation of Liability
In no event shall FullControl Network be liable to client, users or to any third
party for any indirect, consequential, special, incidental, punitive or non-contractual
damages or lost profits arising out of or related to this agreement or any service,
even if FullControl Network has been advised of the possibility thereof. FullControl
Network's liability, if any, to client or to any third party hereunder shall in
no event exceed the total after tax profits earned by FullControl Network under
this agreement in the last twelve months. The parties acknowledge that FullControl
Network has set its prices and entered into this agreement in reliance upon the
limitations of liability and the disclaimers of warranties set forth herein, and
that the same form an essential basis of the bargain between the parties. The parties
agree that the limitation and exclusions of liability will survive and apply even
if found to have failed of their essential purpose.
In no event shall FullControl Network be liable for failure or delay in performing
its obligations hereunder if such failure or reasonable control, including, without
limitations, acts of any governmental body, war, insurrection, sabotage, embargo,
fire, flood, strike or other labor disturbance, interruption of or delay in transportation,
unavailability of or delay in telecommunications or third party services, failure
of third party software or inability to obtain raw materials, supplies, or power
used in or equipment needed for provision of the services.
12 Disclaimer of Warranties
Except as expressly set forth in Section 4 of this agreement, all client services
are provided on an "as is" basis. FullControl Network does not make, and hereby
disclaims, any and all other express and/or implied warranties, including, but not
limited to, warranties of merchantability, fitness for a particular purpose, non-infringement
and title, and any warranties arising from a course of dealing, usage, or trade
practice. FullControl Network does not warrant that the service will be uninterrupted,
error-free or completely secure.
13 General Provisions
Due Authorization and Validity of Agreement. Each party hereby represents and warrants
to the other party that:
- If an entity, it is duly organized, validly existing and in good standing under
the laws of it’s state and/or country of domicile;
- It has the power and authority to execute, deliver and perform under this agreement;
- This agreement constitutes a valid and binding obligation of such party, enforceable
against it in accordance with its terms.
Client will indemnify, defend and hold FullControl Network, and its officers, directors,
employees, agents and affiliates (each, an “indemnified party”) harmless from and
against any and all costs, liabilities, losses and expenses, including, but not
limited to, reasonable attorneys’ fees (collectively, “losses”) resulting from or
arising out of any claim, suit, action, arbitration or proceeding (each, an “action”)
brought by a third party against indemnified party relating to: (i) a breach or
alleged breach by client of any of its representations, warranties, covenants or
obligations hereunder, (ii) infringement or misappropriation of any intellectual
property rights, including but not limited to copyright, trade secret and trademark
rights, (iii) personal injury caused by any negligence or willful misconduct of
client, or (iv) use of the services, including use of the services without the consent
In an effort to address client’s privacy concerns, FullControl Network has instituted
website at http://www.fullcontrol.net. In addition to the terms set forth in this
13.4 Independent Contractor.
FullControl Network and client are independent contractors and this agreement will
not establish any relationship of partnership, joint venture, employment, franchise
or agency between FullControl Network and client. Neither FullControl Network nor
client will have the power to bind the other or incur obligations on the other’s
behalf without the other’s prior written consent.
During the term of this agreement and for a period of one (1) year thereafter, client
shall not solicit or hire the services of any employee or subcontractor of FullControl
Network without the prior written consent of FullControl Network.
Client may not assign or transfer its rights or obligations under or interest in
this Agreement without first obtaining the prior written consent of FullControl
Network. FullControl Network may, in its sole discretion, assign its obligations
under this Agreement in connection any merger, sale of all of substantially all
of the assets of FullControl Network, or sale of a majority of the outstanding shares
of voting stock of FullControl Network.
13.7 No Lease.
This Agreement is a service agreement and is not intended to and will not constitute
a lease for any real or personal property. Client acknowledges and agrees that (i)
it has been granted only a license to use the Services and equipment provided by
FullControl Network in accordance with this Agreement, (ii) Client has not been
granted any real property interest in any equipment, and (iii) Client has no rights
as a tenant or otherwise under any real property or landlord/tenant laws, regulations
13.8 Attorney’s Fees.
In the event of any litigation or arbitration between the parties hereto arising
form or to a party’s nonperformance or breach of this Agreement, the prevailing
party in any such action shall be entitled to reimbursement of all costs and expenses
incurred in connection with such litigation or arbitration, including without limitation,
reasonable attorney’s fees.
This Agreement may be executed in any number of counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument.
The parties agree that this Agreement, the Service Order and Service Order Change
Forms may be delivered by any party by electronic or facsimile signature.
No alteration, modification, or change of this Agreement shall be valid unless made
in writing and executed by the parties hereto.
FullControl Network may refer to the name of Client, Client’s product(s) and/or
services or the business in which the product(s) and/or services are used in its
client directories, on it web site, in a client profile or in a press release.
13.12 Governing Law; Venue.
This Agreement shall be governed by and shall be construed, interpreted, and enforced
in accordance with the laws of the State of Kansas, without reference to principles
of conflicts of law. The parties agree that the sole and exclusive venue for any
and all disputes arising hereunder shall be in any trial court located in Johnson
County, Kansas. The parties hereby irrevocably consent to the jurisdiction of the
appropriate court in Johnson County, Kansas.
Each provision if this Agreement shall be treated as a separate and independent
clause, and the unenforceability of any one clause in no way impair the enforceability
of any of the other clauses herein.
13.14 No Third-Party Beneficiaries.
The terms and provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors and permitted assigns, and it
is not the intention of the parties to confer third-party beneficiary right upon
any other person.
13.15 Entire Agreement.
This Agreement, along with MSTERMS, AUP and Service Order, shall be the entire agreement
among the parties with respect to the transactions contemplated among them and,
except as otherwise provided, supersede all previous negotiations, commitments,