Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs NCH Web’s relationship with any persons using the NCH Web Services (as defined below). Upon the date Client submits an Order Form or starts using the NCH Web Services (as applicable), Client agrees to be bound by this MSA as updated from time to time in accordance with the amendment provisions herein. Depending on the type of NCH Web Services applicable, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable NCH Web Services to the extent of the conflict.
This MSA is comprised of the following and includes such further agreements, policies, and documents as referenced in each of the following:


1. General Terms
2. Billing Terms
3. Privacy Policy
4. Web & Apps Supplemental Terms (Service-Specific Terms)



1. GENERAL TERMS
These General Terms apply to all persons using NCH Web Services.
1.1 Definitions
1.1.1 All other defined terms not listed in this section are defined in their respective sections below or in the applicable Supplemental Terms and apply to the MSA as a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use of the NCH Web Services (including making any component of the NCH Web Services available to Client’s resellers, customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to NCH Web, its Affiliates, NCH Web’s other clients and end users, or NCH Web Systems, (c) is a material violation of the MSA, or (d) is generally considered materially objectionable in the Internet community, including but not limited to child pornography, racism, hate speech.
“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.
“Billing Cycle” means the recurring period of time for which Service Fees are payable by Client to NCH Web as specified in the Order Form, Client Portal, or invoice (as applicable).
“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Central Time on a day which is not a weekend or statutory holiday in Chicago, Illinois, USA.
“Claim” means any claim, demand, action, or proceeding (including law suits and administrative proceedings).
“Client” means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using NCH Web Services.
“Client Account” means the account set up by NCH Web, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the NCH Web Services to Client.
“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client regarding Client’s own use of Enterprise Services, (c) Client’s content hosted on NCH Web Systems, including Client’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information as such term is further described in the appropriate section below, and (d) any of the same relating to or owned by an End User.
“Client ID”, or “customer ID” means the combination of alphanumeric characters designated by NCH Web which (a) is unique to Client, and (b) identifies the Client and the Client Account to NCH Web.
“Client Portal” means NCH Web’s online portal or interface tool (known as Sitecontrol™, Client Portal™, or such other account management tool as NCH Web may designate) for Client to manage the Client Account and associated NCH Web Services.
“Effective Date” means The Effective Date of each Order Form is the later of the date that the Order Form is executed by Client and submitted to NCH Web or the date that the NCH Web Services are made available to Client (in whole or in part).
“End User” means any third party who accesses or uses the NCH Web Services via Client or any Affiliate of Client.
“End User Data” means personal information relating to an End User and data owned or controlled by the End User, including (a) names, addresses, and other personally identifiable information pertaining to End User, (b) usage data collected by Client or End User regarding an End User’s own use of the NCH Web Services, and (c) an End User’s content hosted on NCH Web Systems, including End User’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information.
“NCH Web” means NCH Web Services, Inc., a Delaware corporation, or such other NCH Web company as named in the applicable Order Form.
“NCH Web Data” means any data relating to NCH Web, all NCH Web Services or NCH Web Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by NCH Web regarding Client’s use of the NCH Web Services, and (e) all other data owned or controlled by NCH Web.
“NCH Web Services” (or “Services”) means the products, services, and licenses provided to Client by NCH Web, whether or not used or paid for by Client, which may include any combination of the following:
(a) Web and Apps. Including Website Hosting, Domain names, E-Commerce, Email & Applications Hosting, other web solutions, and as further defined in the applicable Supplemental Terms below;
(b) Add-ons and other related products and services to the above;
(c) Technical Support; and
(d) Any other product or service specified in any of the supplemental terms or applicable Order Forms.
“NCH Web Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, Internet Protocol addresses, and other technologies) owned, licensed, controlled, or otherwise used by NCH Web to provide NCH Web Services to Client, and, as applicable, to End Users and Client Affiliates.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade secrets, (e) any other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in NCH Web’s case, NCH Web Data and NCH Web Systems, and (h) in Client’s case, Client Data.
“Late Charges” means the interest, equal to 1.5% monthly and 18% annual (or the maximum permitted by law if lesser), to be applied to any portion of the Service Fees not paid by Client to NCH Web before the applicable due date.
“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).
“Migration Services” means services which involve moving Client Data from Client’s former hosting provider to NCH Web.
“Minimum Term” means the specific period described in the Order Form, during which time Client may not terminate the Order Form, any NCH Web Services ordered thereunder, or this MSA.
“MSA” means this document and all Supplemental Terms that are attached hereto and incorporated herein by reference.
“Order Form” means NCH Web’s online or hard copy form or statement of work, which (a) references, incorporates, and is an integral part of this MSA (including the applicable Supplemental Terms), and (b) describes the NCH Web Services to be provided to Client.
“Party” means either NCH Web or Client individually and “Parties” means both of them collectively.
“Refresh” means a new order for the replacement of a particular NCH Web Service with a similar NCH Web Service of equivalent function upon the expiration of the Initial Term. (For example, a replacement of aging hardware).
“Renewal Term” means the period or successive periods starting from the expiration of the Minimum Term specified in the applicable Order Form for which the Order Form and the NCH Web Services thereunder are renewed.
“Representatives” means, collectively, a Party’s shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders.
“Service Fees” means the money amounts or rates, specified in, as applicable, the Order Form, Client Portal, invoice from NCH Web, or which Client has otherwise agreed to pay to NCH Web in consideration of the NCH Web Services provided, whether used by Client or not.
“Technical Support” means the assistance and advice NCH Web’s technical support staff provides to Client, as part of the NCH Web Services, via electronic mail, telephone, or other means of communication as designated by NCH Web (including NCH Web’s ticketing system).
“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which NCH Web, in turn, provides to Client as part of, or in combination with, NCH Web’s own products and services which are part of the NCH Web Services.
“Third Party Vendor” means a third party vendor who provides NCH Web with Third Party Products to be, in turn, provided to Client by NCH Web as part of, or in combination with, the NCH Web Services.
“Third Party Vendor Audit” means an audit performed by either NCH Web or a Third Party Vendor with respect to the Third Party Products.
1.1.2 Order of Precedence. Unless stated expressly in an Order Form or any Supplemental Terms, if there is an inconsistency or conflict between the terms of those documents and the MSA, then the terms of this MSA will govern.
1.1.3 References. All references in the MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of the MSA only, unless specific reference is made otherwise. Such titles, headings, and sections are for reference purposes only and will have no effect on the interpretation of the MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to the MSA in its entirety, which includes all Order Forms and Supplemental Terms, and not to any particular provision of the MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of the MSA.
1.1.4 Without Limitation. When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in the MSA that the masculine, feminine or neutral gender is used, it will be construed as including all applicable genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
1.1.5 Translations. The MSA was written in the English language. If there is any discrepancy between the English version and a version in any other language, then the English version will control in all respects.
1.2 Term & Renewal
1.2.1 Term. This MSA will continue in full force and effect until all Order Forms and the Client Account are terminated in their entirety. The term of each Order Form will commence upon the Effective Date and will continue for the duration of the Minimum Term, and any successive Renewal Terms, until terminated by a Party in accordance with this MSA. In the event that Minimum Term and Renewal Term are not specified in the Order Form, the term of each will be one month.
1.2.2 Renewal. Upon expiration of the Minimum Term, the Order Form will automatically renew for successive Renewal Terms until either Party terminates the Order Form, or the Client Account and the MSA in their entirety, in accordance with the termination provisions herein. In the event that Client wishes to Refresh any particular NCH Web Service instead of renewing as-is, Client may execute a Renewal Order Form which will specify the particular NCH Web Service to be Refreshed. NCH Web will add the Refreshed NCH Web Service to the Client Account upon execution of the Renewal Order Form and billing of the Service Fees will commence accordingly. Unless otherwise specified by Client, the expiring NCH Web Service will automatically renew month-to-month in order to allow Client to migrate to the Refreshed NCH Web Service, and Client will pay for both NCH Web Services until Client notifies NCH Web in writing to turn off the expiring NCH Web Service.
1.3 NCH Web Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with this MSA, including all applicable Supplemental Terms, NCH Web will provide to Client the NCH Web Services as described in the Order Form. In furtherance of providing the NCH Web Services to Client, NCH Web hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use NCH Web Systems in connection with the NCH Web Services as permitted in this MSA. NCH Web may, at its sole discretion, add to, modify, remove, or re-price any particular product or service from the NCH Web Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction of the NCH Web Systems and to protect the security of the NCH Web Systems, Client hereby consents to (a) NCH Web upgrading, repairing, or replacing the NCH Web Systems that are hosting Client Data at any time with or without notice to Client, and (b) NCH Web migrating Client Data within the NCH Web Systems at any time with or without notice to Client. NCH Web may (at NCH Web’s sole discretion) provide any of the NCH Web Services (in whole or in part) through an Affiliate of NCH Web, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the NCH Web Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within the NCH Web Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that NCH Web is not responsible for any malfunction or delay in the performance of the NCH Web Services resulting therefrom. In connection with Technical Support, NCH Web makes no representation or warranty that NCH Web will be able to find the cause of, or resolve, the problem for which Client contacts NCH Web for Technical Support. Unless otherwise expressly specified in the Order Form, NCH Web is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s resellers, customers, and End Users.
1.4 Connectivity
Except for the NCH Web Systems specifically licensed to Client hereunder, Client is solely responsible, and NCH Web is not responsible, for sourcing and paying for network resources used to connect Client to the Internet.
1.5 Third Party Products
Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products that may be required by the applicable Third Party Vendor. Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. The Third Party Vendors are permitted to perform directly Third Party Audits on the NCH Web Systems (including any computer server or other hardware licensed to Client by NCH Web as part of the NCH Web Services) with regards to their respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by NCH Web subject to license from such Third Party Vendor.
NCH Web provides a Website Builder product that utilizes images provided by certain Third Party Vendors (“Stock Photos”). These Stock Photos are provided to Client for Client’s use subject to the limited license set forth herein. Client will not:
(a) Use the Stock Photos to create an official logo, company name, trademark or an element thereof;
(b) Use the Stock Photos in a way that infringes any intellectual property rights or a third party’s trademark rights or that would lead to a complaint about deceptive advertising or unfair competition;
(c) Use the Stock Photos for SPAM mailings or in connection with unsolicited emails;
(d) Display, use or post the Stock Photos in a way that would lead to the conclusion that the model in the Stock Photos approves or endorses the items or services of any venture or trademark;
(e) Show a person depicted in the Stock Photos in sensitive scenarios that could reasonably be considered offensive or unflattering to that person (e.g., related to mental and physical deficits, sexual or implied sexual activity or preferences, crime, physical or mental abuse or ailments);
(f) Use the Stock Photos for pornographic, illegal or immoral purposes; and/or
(g) Use the Stock Photos in items or products that could embarrass or humiliate a person or model in the Stock Photos.
Any use of the Stock Photos in violation of this limited license will be considered copyright infringement. Client will be liable for all damages caused by such copyright infringement, including any claims made by a third party against NCH Web. NCH Web reserves the right to recall Client’s license of any Stock Photos that Client has used in a manner that constitutes copyright infringement.
Except as permitted in the licenses which are a part of the Third Party Products, nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. NCH Web makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of Third Party Products. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor. Any mention of Third Party Products by NCH Web, its employees, or any third party entity related to NCH Web is for information purposes only and does not constitute an endorsement or recommendation by NCH Web. NCH Web disclaims any and all liabilities for any representation or warranty made by the Third Party Vendors of the Third Party Products.
1.6 Client Account
Upon Client’s submission or execution of an Order Form, NCH Web will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, NCH Web will provide Client with appropriate login credentials and access to the Client Portal.
1.7 Client Account Ownership
The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using NCH Web Services. It is Client’s sole responsibility, and not NCH Web’s responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with NCH Web, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) NCH Web receives all documentation reasonably requested by NCH Web to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. The includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for NCH Web Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the legal ownership of the Client Account will be as follows in order of precedence: (1) the company or organization listed on the Client Account in NCH Web’s database; (2) the individual who submitted or executed the Order Form; (3) the individual who is the cardholder of the credit card used to pay the most recent Service Fees for the Client Account.
1.8 Domain Name Ownership
Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of NCH Web, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).
1.9 Identification Verification
Each time Client wishes to communicate with NCH Web about the Client Account or Client Data, Client will abide by NCH Web’s then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. NCH Web is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet NCH Web’s security measures and procedures to NCH Web’s sole reasonable satisfaction.
1.10 Ownership Disputes
NCH Web has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). NCH Web may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.
1.11 NCH Web Access
NCH Web reserves the right to physically access the NCH Web Systems at any time, including any computer servers and other hardware licensed to Client as part of the NCH Web Services. In addition, Client will provide NCH Web with continuous root administrative access to all computer servers and other NCH Web Systems licensed to Client and under Client’s control as part of the NCH Web Services. Client acknowledges that NCH Web requires such access to in order to provide the NCH Web Services, including Technical Support. The access provided hereunder may also be used by NCH Web for the purposes of conducting or performing an audit or report, whether by NCH Web directly or by an authorized third party, or pursuant to compliance with any applicable statute, government regulation, or Third Party Vendor requirement (such as in the course of a Third Party Audit).
1.12 Client Access
Client will not physically access any of the NCH Web Systems, including computer servers and other hardware licensed to Client as part of the NCH Web Services. Client may access the Client Account through the Client Portal using only Client’s own authentication credentials (username and password). Client is prohibited from accessing or attempting to access the client account, billing data, or other data of any other person using the NCH Web Services.
1.13 Email Accounts
All email accounts, including POP email accounts, which have not been logged into for a period of 4 consecutive months or more will be deemed abandoned and NCH Web may, at its sole discretion, delete the email account (“Abandoned Mailbox”) and all emails residing in the Abandoned Mailbox (“Abandoned Emails”). In such case, NCH Web will send an email to the master email account identified under the Client Account to notify that the Abandoned Mailbox and the Abandoned Emails will be deleted if the Abandoned Mailbox is not logged into within 14 calendar days. NCH Web may delete all content and data stored in any of Client’s spam folders, junk mail folders, and email accounts for 30 calendar days or more.
1.14 Client Data
Client represents and warrants that Client is the owner of, or is duly authorized or licensed by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, or otherwise manage the Client Data. In the event that Client Data includes any software or application that is not provided by NCH Web, Client is solely responsible for supporting such software or application including maintaining the licenses and installing updates and upgrades to such software or application. NCH Web is in no way liable for the support of such software or application, including Client’s use or misuse thereof. Client is solely liable, and NCH Web will not be liable, for any unpaid licenses installed by Client on NCH Web Systems that are reported in the course of a Third Party Vendor Audit. Client further warrants that the access by NCH Web of any and all materials and data as furnished by Client to NCH Web in the provision of the NCH Web Services will not violate or conflict with any Intellectual Property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit NCH Web to use all relevant code for the purposes of performing the NCH Web Services hereunder. In the event that Client requests NCH Web’s assistance or participation in any third party audit of the Client Data or of Client’s use of the NCH Web Services, NCH Web agrees to reasonably cooperate with Client (at Client’s expense) to respond to any audit inquiries solely as related to the NCH Web Services.
1.15 Protected Health Information
If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform NCH Web in writing of Client’s intended use of the NCH Web Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and NCH Web, a Business Associate Agreement as mandated by HIPAA and HITECH (in NCH Web’s standard form), whereby Client is the covered entity and NCH Web is the business associate or whereby Client is the business associate and NCH Web is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to Client’s indemnification obligations under this MSA, Client will further indemnify NCH Web (including NCH Web’s Representatives) from and against any Claims against NCH Web or Losses incurred by NCH Web that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding Protected Health Information, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute.
1.16 Migration Services
If Client’s Order Form includes Migration Services, then Client agrees that:
(a) The Migration Services may be performed by NCH Web and/or a Third Party Vendor at NCH Web’s sole discretion;
(b) The Migration Services require Client’s former hosting provider to provide NCH Web (and the Third Party Vendor, as applicable) with valid administrative access to permit the migration of Client Data to NCH Web Systems, and it is Client’s sole responsibility (not the responsibility of NCH Web or the Third Party Vendor) to obtain such valid administrative access;
(c) Client’s failure to provide NCH Web (and the Third Party Vendor, as applicable) with valid administrative access from Client’s former hosting provider will result in the inability for NCH Web (including the Third Party Vendor) to provide, and Client to use, Migration Services;
(d) Client represents and warrants that the Client Data is compliant with the terms of this MSA and all applicable laws and regulations, and that Client is the legal owner of the Client Data or otherwise duly authorized by the legal owner to initiate the migration of the Client Data to the NCH Web Systems;
(e) The Migration Services, or other NCH Web Services, do not include installation or implementation of any custom software, library, database, or service that existed in Client’s previous hosting environment, and it is Client’s sole responsibility (not the responsibility of NCH Web or the Third Party Vendor) to install and configure any such custom software, library, database once the Migration Services are completed;
(f) NCH Web, including the Third Party Vendor, is not obligated to make any website, programming, script, content, or data changes to the Client Data at any time during or after the migration to the NCH Web Systems;
(g) Any Client Data migrated to NCH Web Systems by NCH Web, including the Third Party Vendor, is migrated ”as is” from the former hosting provider, and NCH Web does not make any warranty of any kind (either express or implied), and hereby expressly disclaims any and all liability, regarding any migrated Client Data, including (a) the format, quality, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of the Client Data to its original state prior to the migration, and (b) the functionality, compatibility or reliability of any migrated Client Data with any NCH Web Services or NCH Web Systems, including architecture, firewall, operating systems, software, updates and upgrades thereto;
(h) NCH Web (including the Third Party Vendor) provides the Migration Services “as is” without warranties of merchantability or fitness for a particular purpose and, except for NCH Web’s gross negligence or willful misconduct, under no circumstances will NCH Web be liable for (a) any loss of Client Data, (b) third party fees related to the recovery or restoration of Client Data, or (c) damage to Client’s servers or Client Data; and
(i) Client’s use of the Migration Services is at Client’s sole risk and Client will remain solely responsible (and NCH Web and the Third Party Vendor will not be responsible) for the content of the Client Data at all times.
1.17 Data Backup
Unless the Order Form expressly includes NCH Web’s data backup services as part of the NCH Web Services to be provided, Client is solely responsible, and NCH Web is not responsible in any way, for the backup (copy and storage for purposes of retrieval or data loss recovery) of Client’s data or the management of such backup. Client acknowledges that for any of NCH Web data backup services, Client’s data is backed up onto NCH Web Systems “as is” and that NCH Web’s backup services do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client’s data or the backup thereof. It is Client’s sole responsibility, and not the responsibility of NCH Web, to (a) secure and protect, including encrypt, all Client Data which may be backed up through NCH Web Systems, (b) implement and maintain a disaster recovery plan, including adequate offsite backup commercially reasonable given the nature, scope, and sensitivity of Client’s data, and (c) locally backup all essential data on Client’s own systems independent of NCH Web (including at Client’s own premises) for purposes requiring data recovery or retrieval. Client is solely responsible, and NCH Web is not responsible, for the backup of any of Client’s data which may have resided on NCH Web Systems at one time but which no longer resides on NCH Web Systems at the time NCH Web’s backup services, if expressly included in the Order Form, is implemented. NCH Web expressly disclaims the usability, functionality, or accuracy of Client’s data backed up using NCH Web’s backup services. NCH Web makes no warranty of any kind (either express or implied) regarding any of NCH Web’s backup services, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client’s data backed up on NCH Web Systems to its original state, and (b) the functionality, compatibility or reliability of any of NCH Web’s backup services with any firewall or software or updates and upgrades thereto. If expressly included in the Order Form, then NCH Web provides its backup services “as is” without warranties of merchantability or fitness for a particular purpose. Under no circumstances will NCH Web be liable for any loss of Client’s data or for third party fees related to the recovery or restoration of Client’s data. Client’s use of NCH Web’s backup services is at Client’s sole risk.
1.18 Data Security
NCH Web will use industry standard measures to detect and prevent unauthorized third parties from accessing NCH Web Systems. Notwithstanding anything to the contrary, Client acknowledges that NCH Web does not guarantee, and does not represent or warrant, that the NCH Web Systems cannot or will not be accessed by unauthorized third parties. Client will review NCH Web’s Privacy Policy, as amended from time to time, posted at https://www.nchweb.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by NCH Web), which is incorporated herein by reference.
1.19 Data Disclosures
Client hereby consents to NCH Web disclosing Client’s data required to be disclosed by any (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either NCH Web or Client operates its business. However, if and to the extent allowed by such law or court order, NCH Web will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse NCH Web for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by NCH Web in complying with such requirement.
1.20 Data Transfers
1.20.1 Cross-Border Data Transfers. Client acknowledges that the NCH Web Services and Third Party Products may be provided from the U.S.A. or any other country in which NCH Web, its Affiliates, and its Third Party Vendors maintain their business operations. As such, NCH Web, its Affiliates, and its Third Party Vendors may transmit, store, access, process, and use (collectively “Process”) Client’s data in, to, or from the U.S.A. or any other country in which NCH Web, its Affiliates, and its Third Party Vendors maintain their business operations. In furtherance of the MSA and the applicable Order Form, and in connection with the provisioning of NCH Web Services and Third Party Products to Clients, Client acknowledges that Client Data may not remain in the country such data originated from. Client hereby consents to NCH Web, its Affiliates, and its Third Party Vendors Processing Client Data in the U.S.A. or any other country in which NCH Web, it Affiliates, and its Third Party Vendors maintain their business operations.
1.20.2 Consent Revocation; Migration; Deletion. Client may revoke its consent to having Client Data Processed in the U.S.A., or such other jurisdiction in which NCH Web’s Affiliates and Third Party Vendors may reside, by providing NCH Web with written notice of Client’s revocation of consent (“Consent Revocation”). Upon receipt of the Consent Revocation, NCH Web will cooperate with Client in transferring all Client Data to a lawful destination of Client’s choice (“Migration”). Client acknowledges that the Migration entails the actions of Client (and, if applicable, Client’s vendor or new hosting service provider) and does not entail any action on NCH Web’s part other than to provide access to the Client Data. Upon Client’s written request, NCH Web may provide Client with reasonable Migration assistance as part of the Enterprise Services, in which case, NCH Web may charge (and Client will pay in advance) the Services Fees NCH Web normally charges for migrations of the magnitude and complexity Client requires for the Migration. Client acknowledges that Client must complete the Migration, and remove all Client Data off of NCH Web Systems, within 60 calendar days of the date NCH Web received the Consent Revocation (“Migration Period”). If any Client Data remains on NCH Web Systems beyond the Migration Period, then NCH Web may permanently delete such Client Data and all backups and copies thereof. It is Client’s sole responsibility, and not NCH Web’s responsibility, to perform backups and keep copies of Client Data as needed by Client.
1.20.3 Transfer Restrictions. As between NCH Web and Client, it is the sole responsibility of Client, and not the responsibility of NCH Web, to ensure that Client Data, including End User Data, required to remain in a particular country is restricted to that country. Prior to Client’s submission of an Order Form or use of NCH Web Services, Client will inform NCH Web in writing of all transfer restrictions or jurisdictional requirements pertaining to Client Data and the Parties will work in good faith together to determine if the transfer restrictions and jurisdictional requirements can be satisfied. Client will review NCH Web’s Privacy Policy, as amended from time to time, posted at https://www.nchweb.com/about/legal/ (or such other redirected webpage or alternate URL as designated by NCH Web), which is incorporated herein by reference.
1.20.4 EU Data. If Client engages in the “processing” of any “personal data” (as such terms are defined in the EU General Data Protection Regulation 2016/679 (“GDPR”)) from the European Union, then Client will: (a) inform NCH Web in writing of Client’s intended use of the NCH Web Services for processing personal data from the EU, (b) comply with all requirements of the GDPR and all implementing rules, associated policies, and directives, (c) execute, as between Client and NCH Web, a data processing agreement in compliance with the GDPR (on NCH Web’s standard form), whereby Client is the data controller and NCH Web is the data processor or whereby Client is the data processor and NCH Web is the sub-processor (or level 2 processor) if Client is the service provider of a data controller (as the terms “processor”, “controller”, and “sub-processor” are defined by the GDPR), (d) adhere to the GDPR, including the designation of Client’s data protection officer and execution by Client of data processing agreements with data controllers and Client’s own sub-processors, and (e) ensure that Client is fully transparent about the nature and purpose of its processing of personal data. In addition to Client’s indemnification obligations under this MSA, Client will further indemnify NCH Web (including NCH Web’s Representatives) from and against any Claims against NCH Web or Losses incurred by NCH Web that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding processing of personal data from the EU, or (ii) Client’s breach of the GDPR or other applicable law.
1.21 NCH Web’s Intellectual Property
In no way will any license granted by NCH Web in this MSA be an assignment of rights, title, or ownership in any of NCH Web’s Intellectual Property, including any of the NCH Web Systems, and NCH Web retains sole and exclusive right, title and ownership in and to all of NCH Web’s Intellectual Property. As between NCH Web and Client, all Internet Protocol addresses provided to Client by NCH Web belong exclusively to NCH Web. Client acknowledges that Client has no right to use such Internet Protocol addresses except as permitted by NCH Web in connection with the NCH Web Services and in accordance with this MSA. NCH Web may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in this MSA, Client may not use NCH Web’s Intellectual Property without obtaining the prior written consent, in each instance, of NCH Web. NCH Web’s Intellectual Property includes any data relating to NCH Web, the NCH Web Services, or NCH Web Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by NCH Web regarding Client’s use of NCH Web Services, and (e) all other data owned or controlled by NCH Web.
1.22 Other Restrictions
Client will not take any action or use any of NCH Web’s Intellectual Property or any Third Party Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to NCH Web’s Intellectual Property or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes NCH Web’s rights, title, or interest in or to NCH Web’s Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their Intellectual Property. If Client does acquire any rights, title, or interest in or to any of NCH Web’s Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to NCH Web at Client’s sole cost. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the NCH Web Services, NCH Web Systems, and Third Party Products to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or trade secrets contained therein.
1.23 Resellers, Customers & End Users
Client is solely responsible, and NCH Web is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of NCH Web Services by Client’s resellers, customers, and End Users will not be in contravention this MSA. If NCH Web receives complaints about Client’s resellers, customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to NCH Web’s rights in this MSA to suspend NCH Web Services, NCH Web may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to NCH Web’s satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as NCH Web may deem appropriate.
1.24 Domain Name Proxy Services
If the NCH Web Services provided to Client includes domain name registration services where NCH Web or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if NCH Web or the third party provider does not receive a response to a communication sent to Client within 48 hours of such communication being sent, then NCH Web or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all NCH Web Services) at its sole discretion.
1.25 Other Representations & Warranties
Client represents and warrants to NCH Web as follows:
(a) Client has the full authority to execute, deliver, and perform under the MSA, the MSA is valid, binding, and enforceable against Client in accordance with the terms herein, and no provision requiring Client’s performance is in (a) conflict with Client’s obligations under any other agreement, (b) violation of any law applicable to Client, or (c) contravention of Client’s by-laws or other governing rules, as applicable;
(b) Client is duly organized, authorized, and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Client’s business makes such authorization necessary or required; and
(c) Client’s purpose for entering into this Agreement and using or delivering the NCH Web Services is not to engage in, or be part of, any activity that is, or may reasonably be deemed, objectionable in the Internet community, unethical, unlawful or illegal.
1.26 Disclaimer
Notwithstanding anything to the contrary in this MSA, NCH Web (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the NCH Web Services, NCH Web Systems, or Third Party Products, and (b) provides all aspects of the NCH Web Services, NCH Web Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the NCH Web Services, NCH Web Systems, and Third Party Products at Client’s sole risk. No verbal advice or written information given by NCH Web, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.
1.27 Force Majeure
NCH Web will not be liable for delays in its performance of this MSA caused by circumstances beyond NCH Web’s reasonable control including natural disasters and other “acts of God”, fire and other destruction, sabotage, terrorism, war, insurrection, embargo and other acts of any governmental body, or strikes and other labor disturbances (“Force Majeure”). If NCH Web is affected by a Force Majeure, NCH Web will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.
1.28 Limitation of Liability
Under no circumstances will NCH Web be liable to Client for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to this MSA or the NCH Web Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if NCH Web has been advised of the possibility of such damages. NCH Web’s aggregate liability to Client, if any, arising out of or relating to this MSA or the NCH Web Services will not exceed the aggregate amount of Service Fees paid hereunder during the 3 calendar months immediately preceding the event giving rise to the liability. No Claim by Client against NCH Web, relating to this MSA or the NCH Web Services, will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.
1.29 Indemnification
If NCH Web, or any Representative of NCH Web, incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of Client or its employee, contractor, or agent which amount to (a) breach of this MSA (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate NCH Web and, as applicable, NCH Web’s Representatives, for all Losses, as they accrue and become payable by NCH Web, and defend, hold harmless, and protect NCH Web, including NCH Web’s Representatives, from and against all Claims. “Representatives” means, collectively, shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders. In addition, if NCH Web (including NCH Web’s Representatives) incurs Losses because of any Claim arising out of, or in connection with, the acts or omissions of any of Client’s resellers, customers, or End Users, then Client will indemnify, reimburse, and otherwise compensate NCH Web for all Losses related thereto, as they accrue and become payable by NCH Web, and defend, hold harmless, and protect NCH Web from and against all Claims related thereto.
NCH Web agrees to give prompt written notice to Client of the Losses and the Claim for which indemnification is sought, and Client will have the right to control the defense and settlement of any Claim at the sole expense of Client. NCH Web agrees to fully cooperate in the defense or settlement of any Claim at the sole expense of Client. Notwithstanding the foregoing, the failure of NCH Web to give prompt notice, cooperate, or timely mitigate will not affect NCH Web’s rights to indemnification, except (and only to the extent) that Client’s ability to provide indemnification is impeded or frustrated, or Losses would have been avoided or mitigated. Client will obtain the prior written agreement of NCH Web for any settlement or proposal of settlement, which will not be unreasonably withheld
1.30 Abuse of Services
Client will use the NCH Web Services, and access the NCH Web Systems, only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s resellers, customers, and End Users do not engage in any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services in this MSA, Abuse of Services include (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’ Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import or export control laws, regulations, and policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, 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); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the NCH Web Services and NCH Web Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the NCH Web Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.
1.31 Executive Order 13224
Client will not use the Enterprise Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the NCH Web Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all amendments thereto.
1.32 Sanctions
Client will not use the NCH Web Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the NCH Web Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the NCH Web Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the NCH Web Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.
1.33 Suspension
NCH Web may, at its sole discretion and without prior notice, immediately suspend the NCH Web Services and the Client Account if NCH Web determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or NCH Web Systems. NCH Web will promptly notify Client in writing upon suspending NCH Web Services pursuant to an Abuse of Services. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to NCH Web’s sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in or the Client Account is involved in any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to NCH Web Systems or attend to complaints received by NCH Web.
1.34 Revocation of Domain Name
If Client purchases a domain through NCH Web, NCH Web may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of this MSA, or (b) NCH Web’s receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.
1.35 Survival Clauses
The provisions of this MSA which by their nature continue beyond the termination of this MSA will survive such termination, including the provisions of this MSA relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.
1.36 Minimum Age Requirement
Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to this MSA and submit an Order Form. If the person wishing to use NCH Web Services is under such age of majority (a “Minor”), then such person must have a parent or legal guardian accept this MSA, and submit the Order Form, in the name of the parent or legal guardian in order for the Minor to use NCH Web Services. If Client is a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then Client will be the legal owners of the Client Account and primarily liable for (a) the use of NCH Web Services by the Minor, and (b) for the Minor’s compliance with this MSA, including timely payment of all Service Fees. Client will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless Client executes a valid assignment of the Client Account to transfer ownership to the Minor. Any agreement to this MSA or submission of an Order Form by a Minor will be deemed null and void to the extent that NCH Web will not be liable in any way as a result of the Minor’s age or legal incapacity or the Minor’s use of the NCH Web Services.
1.37 Assignment
Client may not assign or otherwise transfer Client’s respective rights or obligations under this MSA without the prior written consent of NCH Web, which will not be unreasonably withheld. Without requiring Client’s prior consent, NCH Web may assign or otherwise transfer this MSA, and NCH Web’s rights and obligations hereunder, to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of NCH Web’s business, stock or assets. Any assignment or transfer in violation of this MSA will not have any effect against NCH Web. This MSA will be binding and have effect upon NCH Web and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than NCH Web and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with this MSA. Notwithstanding the foregoing, Client acknowledges that NCH Web may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of NCH Web’s Affiliates, which will not be deemed an assignment of this MSA.
1.38 Waiver; Severability; Cumulative Rights
No waiver by NCH Web of a breach of any provision of this MSA will take effect or be binding upon NCH Web unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of NCH Web in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of this MSA. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
1.39 Non-Solicitation and Relationship of Parties
While a Client of NCH Web and for a period of 1 year thereafter, Client will not, individually or in association or in combination with any other person or entity, directly or indirectly solicit for employment, entice away from NCH Web, induce, or procure services directly from any employee of NCH Web. Nothing in this MSA will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between NCH Web and Client. Each of NCH Web and Client will be deemed an independent contractor at all times and will not have any right or authority to assume or create any obligation on behalf of the other party except as may be expressly permitted herein. This MSA is for the sole benefit of NCH Web and Client only and does not create any rights on the part of any third party, including Client’s resellers, customers or End Users.
1.40 Non-Exclusivity
NCH Web and Client each acknowledge that the relationship between them in connection with the NCH Web Services and this MSA is non-exclusive and that NCH Web may grant a license to use, market, sublicense, or distribute the NCH Web Services, including providing access to the NCH Web Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.
1.41 No 3rd Party Beneficiary
The MSA is for the sole benefit of the Parties and does not create any rights on the part of any third party, including Client’s resellers, customers, and End Users. Client acknowledges that NCH Web’s obligations under the MSA are to Client only. Client is solely responsible, and NCH Web is not responsible, for ensuring Client satisfies all of Client’s obligations to Client’s resellers, customers, and End Users.
1.42 Governing Law
This MSA will be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. Any Claim against a Party in connection with the subject matter of this MSA (or the MSA itself) will be brought in Chicago, Illinois. This MSA will not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
1.43 Dispute Resolution
All Claims arising out of or relating in any way to this MSA (including requests for specific performance) will be submitted to mandatory binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language and will take place in Chicago, Illinois before a single arbitrator selected in accordance with the Commercial Arbitration Rules. The parties will each bear the costs of the arbitration in equal shares. The parties will also bear their own legal fees (including lawyer fees and witness costs) in connection with the arbitration and the arbitrator may not reallocate the legal fees in conjunction with the award. Any award rendered by the arbitrator will be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each of NCH Web and Client hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
1.44 Notices
Any notice or other communication between the Parties required or permitted under this MSA will be in writing and will be delivered by commercial courier or transmitted by electronic mail. It is Client’s responsibility to ensure that Client’s contact information is kept up to date with NCH Web, and NCH Web will not be liable for Client missing any notice or communication as a result of an outdated or seldom accessed address, phone number, or email address.
1.45 Amendments
Client acknowledges that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing and, as such, Client further acknowledges that NCH Web, at its sole reasonable discretion, may update the MSA from time to time to address the changes affecting the MSA and the NCH Web Services. If NCH Web makes any amendment to the MSA or any portion thereof, such as any Supplemental Terms, NCH Web may post a notice on NCH Web’s Legal webpage at https://www.nchweb.com/master-services-agreement/. Client’s continued use of NCH Web Services following notice of the amendment constitutes Client’s agreement and acceptance of the amendments.
1.46 Complete Agreement
This MSA, which includes the Order Forms, Supplemental Terms, and all other agreements, policies, and documents referenced herein, constitutes the complete agreement between NCH Web and Client relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.
2. Billing Terms
These Billing Terms apply to all persons using NCH Web Services.
2.1 Service Fees
Client will pay to NCH Web the Service Fees on or before each due date as specified in the Client Portal or invoice (as applicable). Except where Service Fees are calculated based on Client usage or as otherwise provided in the Supplemental Terms, Client acknowledges that Service Fees will start accruing from the time the Client Account is created and NCH Web Services are made available to Client, whether or not Client uses the NCH Web Services. If the Order Form includes NCH Web Services that are billed based on usage, then Client’s Service Fees will vary accordingly in each Billing Cycle depending on Client’s actual usage. If the Order Form includes NCH Web Services that are billed based on the time and materials used by NCH Web (including any of its Affiliates or Third Party Vendors) such as Professional Services, then Client acknowledges and agrees that Client’s Service Fees are subject to change from the amount described in the Order Form depending on NCH Web’s actual time and materials used, provided that NCH Web will obtain Client’s prior approval for any additional billable time that exceeds the amount described in the Order Form.
2.2 Billing
Client’s Billing Cycle will start from the time NCH Web creates the Client Account and makes the particular NCH Web Services available to Client. The Billing Cycle may vary depending on the billing period selected by Client and depending on the particular NCH Web Services ordered (different NCH Web Services may have different Billing Cycles). Resellers are limited to the monthly Billing Cycle. Unless Client chooses to manually renew Client’s NCH Web Services, the Billing Cycle will automatically renew for the same successive period until Client cancels the Client Account or terminates this MSA in accordance with the cancellation provisions and termination provisions herein. If Client elects to manually renew the NCH Web Services, Client is solely responsible, and NCH Web is not responsible, for ensuring the timely renewal of the NCH Web Services to avoid service interruption. Client may elect to change the Billing Cycle, but the new Billing Cycle will take effect only at the end of the current Billing Cycle and upon renewal. The Billing Cycle will end upon the applicable anniversary date the Billing Cycle began (“Due Date”), which will be for Service Fees in advance with adjustments in arrears for Service Fees based on usage, if applicable. The Billing Cycle applies to Service Fees for all NCH Web Services except domain name registrations, which are paid according to registration periods as set by the domain name registrar. Client acknowledges that NCH Web does not provide invoices and that Client is solely responsibility for viewing information pertaining to the Billing Cycle and Due Date through the Client Portal and ensuring payment of Service Fees before the Due Date. Add-on features to NCH Web Services added to the Client Account may be charged monthly or according to the Billing Cycle or otherwise based on an alternate payment schedule as agreed by NCH Web when Client orders such features. Add-on features are non-refundable.
2.3 Past Due Amounts
If Client fails to pay the Service Fees on or before the Due Date, then NCH Web may charge Client Late Charges to be applied to any portion of the Services Fees unpaid past the Due Date. If the Client Account has Service Fees unpaid past the Due Date, then NCH Web may suspend the Client Account (and the NCH Web Services associated with it) with or without notice at any time at NCH Web’s sole discretion. NCH Web may also terminate this MSA and cancel the Client Account in its entirety if the Service Fees remain past due following reasonable notification from NCH Web to the contact person listed in the Client Account. Client is solely responsible, and NCH Web is not responsible, for keeping Client’s contact information up to date and for any failure to receive such notification of Client Account cancellation.
2.4 Payment Methods
Client will pay the Service Fees via the credit card indicated in the Order Form, which will be selected from one of the following:
(a) Visa
(b) MasterCard
(c) American Express
(d) Discover

Client will provide NCH Web with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. Client will notify NCH Web in writing of all changes to Client’s credit card, including card number, expiration date, and billing address. For credit card payments, Client hereby authorizes NCH Web to automatically charge Client’s credit card each Billing Cycle for Service Fees. Client hereby also consents to NCH Web charging Client the chargeback fee assed against NCH Web from the credit card company for each credit card chargeback received by NCH Web. Client acknowledges that recurring Service Fees will be charged to Client’s credit card each Billing Cycle until Client cancels the Client Account or otherwise terminate the Order Form or this MSA in accordance with the cancellation provisions and termination provisions of this MSA.
2.5 Taxes.
2.5.1 Chargeable Tax. The Service Fees quoted by NCH Web, whether on NCH Web’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, or in Client’s Customer Portal or on Client’s invoice, do not include sales or any other taxes which may be applicable. If any federal, state, provincial or other goods and services tax (excluding any tax levied on property or income) is applicable to Client’s purchase of the NCH Web Services (“Tax”) and is required by law to be collected from Client by NCH Web, then (a) NCH Web will charge Client for such Tax in addition to the Service Fees, (b) Client consents to such Tax being charged to Client, and (c) NCH Web will remit such collected Tax to the applicable tax authority.
2.5.2 Audit Cooperation. If NCH Web is audited by a tax authority or other governmental entity with legal authority over the matter, Client agrees to reasonably cooperate with NCH Web (at NCH Web’s expense) in order to respond to any audit inquiries in a proper and timely manner so that the audit, and any resulting controversy, may be resolved expeditiously.
2.5.3 Tax Exemption. If a Tax exemption is available and Client complies with the exemption procedures thereto, including submitting to NCH Web all documentation evidencing the exemption, then NCH Web will not charge or collect such Tax during the effective period of such exemption.
2.5.4 Withholding Tax. If any applicable tax authority requires withholding taxes be paid on money amounts payable by Client to NCH Web pursuant to the MSA (“Withholding Tax”), then Client will (i) be entitled to deduct such Withholding Tax from the money amounts payable to NCH Web hereunder, (ii) remit such amounts to the appropriate tax authority, and (iii) provide to NCH Web, on a quarterly (every 3 calendar months) basis, the statements of the Withholding Taxes paid.
2.6 Other Fees
If Client wishes to reactivate a closed Client Account, then Client will be charged a reactivation fee of $19.95. A further fee of $99.95 will be charged to the Client Account if NCH Web restores Client Data to the Client Account as part of the reactivation. NCH Web may charge Client a fee of $19.95 for certain changes to the Client Account (“Account Change Requests”), including requests to:
(a) change to a lower priced hosting plan on the same platform;
(b) change hosting plans from one operating system platform to a different operating system platform;
(c) separate one or more hosting plans contained under one Client Account into separate Client Accounts (the fee for this Account Change Request is charged to each new Client Account).
There is no upgrade fee for upgrading to a higher priced hosting plan, but Client will be charged any difference between the setup fees applicable to Client’s new and former hosting plans. For Account Change Requests, contact support@nchweb.com.
2.7 Termination and Account Cancellation
This MSA will continue through the Minimum Term and any Renewal Term stated in an Order Form. Client may terminate this MSA, a particular Order Form, or the Client Account in its entirety, only in accordance with the terms herein. NCH Web may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Without limiting NCH Web’s rights under Abuse of Services and Suspension above, NCH Web may also terminate this MSA or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time.
To cancel the Client Account or particular NCH Web Services after the expiration of the Minimum Term or during a Renewal Term, Client must contact NCH Web’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-866-521-5464 or email support@nchweb.com, and must specify the exact NCH Web Services, or domain name, that Client is cancelling. The cancellation process is not complete or effective until NCH Web confirms the closure of the Client Account by providing Client a confirmation number either over the phone or through email at Client’s contact information recorded on the Client Account. Client acknowledges that there are no pro-rated refunds after the NCH Web Services are made available to Client. Cancellation requests must be received at least 30 calendar days before the end of Client’s Billing Cycle or Client’s Billing Cycle will automatically renew for a successive Billing Cycle. NCH Web does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the NCH Web Services. Cancellation of Client’s NCH Web Services does not relieve Client from paying all outstanding balances owed on the Client Account.
Upon any termination of this MSA or the Client Account, NCH Web may delete all Client Data residing on NCH Web Systems. It is Client’s sole responsibility, and not the responsibility of NCH Web, to ensure that all Client Data is either retrieved prior to termination or otherwise backed up on systems other than NCH Web Systems or using NCH Web Services. Client acknowledges that (a) termination of this MSA or an particular Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate this MSA or the other NCH Web Services.
This MSA, and all Order Forms, will automatically terminate if Client makes a general assignment for the benefit of Client’s creditors, Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets, Client files or has a petition filed against Client for bankruptcy, or Client is otherwise adjudicated insolvent or bankrupt.
2.8 Billing Disputes
NCH Web will maintain records of the NCH Web Services provided to Client and the billing thereof. If there is an inconsistency between NCH Web’s records as stated in the Client Portal and Client’s records, then NCH Web’s records will be deemed the controlling records. If Client wants to dispute the amounts, then contact NCH Web’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-866-521-5464 or email billing@nchweb.com. Disputes Client may have over any portion of Service Fees will not exempt Client’s payment obligations for undisputed Service Fees whether such non-disputed amounts pre-date, post-date, or are concurrently dated with the disputed amounts. If Client fails to provide to NCH Web written notice of a disputed amount of Service Fees within 7 calendar days after the Service Fees are made available through the Client Portal, then Client will be deemed to have accepted the amounts owed and will be obligated to pay such amounts.
2.9 Price Changes
NCH Web may, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the NCH Web Services with or without notice. Price changes become effective on the next Billing Cycle.
2.10 Collections
Client Accounts in arrears with past due and unpaid Service Fees are subject to collections. In the event of collection, Client will be liable for Late Charges and all costs of collection, including attorney’s fees, court costs, and collection agency fees.
2.11 Currency
Unless stated otherwise, all money amounts stated by NCH Web, including on NCH Web’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, the Customer Portal, and any invoice issued by NCH Web are in U.S. Dollars.
3. Privacy Policy
This MSA includes NCH Web’s Privacy Policy, as amended from time to time, posted at https://www.nchweb.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by NCH Web), which is incorporated herein by reference (“Privacy Policy”). By agreeing to this MSA, Client is also agreeing to the Privacy Policy.
4. Web & Apps Supplemental Terms
Depending on the type of NCH Web Services that Client orders, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable NCH Web Services to the extent of the conflict. The Supplemental Terms are collectively an integral part of this MSA and supplement the General Terms and Billing Terms above and are hereby incorporated into this MSA by reference.
4.1 Web Hosting, Emails, and E-Commerce Services
4.1.1 Refund Policy
Refunds for NCH Web Services pertaining to Web Hosting and E-Commerce are available for shared hosting plans only. Each shared hosting plan carries a 30-day money back guarantee. If Client cancels a shared hosting plan within the first 30 calendar days of Client’s first Billing Cycle in accordance with NCH Web’s cancellation process, Client may request a refund of the Service Fees (excluding setup fees) Client have paid in advance. Cancellations received after the first 30 days of the Billing Cycle do not qualify for any refund. Refunds will be provided to the original payee via the same payment method as the original payment. The following services do NOT qualify for the 30-day money back guarantee: (a) add-on features to NCH Web Services; (b) domain name registrations.
4.1.2 Server Resources
Any website that uses a high amount of server resources (including CPU time, memory usage, and network resources) will be given the option to either pay additional Service Fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade the Services ordered. NCH Web will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and E-Commerce plans come with a limit of 5,000 files per Client Account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of $9.95 per month. Any Web Hosting and E-Commerce plan deemed to be adversely affecting server performance or network integrity may be shut down without prior notice.
4.1.3 CGI Scripts
Any script that poses a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. NCH Web does not permit CGI script sharing with domains not hosted by NCH Web or scripts which may be abused for UCE purposes.
4.1.4 Chat Rooms
Client is not permitted to install chat rooms because chat rooms tend to require significant system resources. However, for a small charge, NCH Web may provide Client with Java chat rooms.
4.1.5 Background Running Programs and Cron Jobs
NCH Web may allow programs to run in the background, which programs will be considered by NCH Web on a case-by-case basis. Client will incur extra Service Fees based on system resources used and operational maintenance needed. If Client wishes to run background programs, contact NCH Web at support@nchweb.com to arrange the setup.
4.1.6 IRC
Client is not permitted to operate IRC or IRC bots.
4.1.7 Software Distribution
Client is not configured for the purposes of distributing software or multimedia products. If Client wishes to distribute software and/or multimedia files, contact support@nchweb.com to make special arrangements.
4.1.8 Multimedia Files
Client is not permitted to use the Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If the Client Account’s disk space usage for storing Multimedia Files exceeds 70% of its total usage, in terms of total size or number of files, NCH Web may suspend or cancel the Client Account.
4.1.9 Databases
If Client stores any database on NCH Web’s Web Hosting and E-Commerce servers, Client must limit the size to 10% of the total disk space allotted for the particular domain name associated with the Client Account.
4.2 NearMeNow
NCH’s NearMeNow Service allows Client to evaluate, publish and update its business information, such as Client’s company name, address, contact details, photos, logos, (altogether, “Location Data”) on a number of different platforms (“Publication Partners”). These Supplemental Terms govern NCH’s provision and Client’s use of the NearMeNow Service.
4.2.1 Use and Transfer of Location Data
NCH uses certain Third Party Vendors and Publication Partners as a part of the NearMeNow Service, and such Third Party Vendors and Publication Partners will require access to the Location Data in the ordinary course of providing the NearMeNow Service to Client. As such, Client acknowledges and agrees that:
(a) Client authorizes NCH to use, disclose, and transfer the Location Data to such Third Party Vendors and Publication Partners for this purpose;
(b) The Location Data, as provided to NCH by Client, will not contain any viruses, spyware or other harmful code or materials;
(c) The Location Data constitutes a “primary” source of the Client’s own business listings data, (i.e., it originates or is derived directly from the Client, versus being derived from any secondary or aggregated sources);
(d) The Location Data will not contain any data, code or other materials that are subject to a GPL (GNU Public License) or LGPL (Lesser GNU Public License) license, ODbL (Open Database license), or any other license, that would impose obligations on NCH or any Third Party Vendor or Publication Partner to distribute or disclose any data or software with which Client's Location Data is combined or to permit third parties to reverse engineer or replace any portions of any data or software with which Client's Location Data is combined, that would require NCH or any Third Party Vendor or Publication Partner to license patent rights to any party, or that would impose any other obligation or limitation on NCH or any Third Party Vendor or Publication Partner not expressly set forth in the MSA, and
(e) The Location Data is current and accurate and that they are not pornographic, unlawful, harassing, defaming, offensive or in any other way inappropriate, that they do not glorify violence, are not harmful for underage persons and that they do not violate the rights of third parties.

4.2.2 Limited License to Location Data
Client grants a global, non-exclusive, transferable license to NCH (i) to collect, combine or modify the Location Data provided by Client, or to augment them with other data collected by NCH, including its Third Party Vendors or Publication Partners; (ii) to use the Location Data for internal purposes as a part of developing and providing the NearMeNow Service; (iii) to sell, market, distribute, promote and advertise other Services that may contain Location Data; (iv) to disclose the Location Data and/or works derived from them to its Third Party Vendors and Publication Partners (directly or via a sales chain) and (v) to indirectly grant use of the Location Data to the clients of the Publication Partners via arrangements with the latter. This limited license does not extend to a disposal or other sales of any Client materials made available to Ntirety, including any Third Party Vendors and Publication Partners, and they are expressly prohibited from doing so.

4.2.3 Deletion or Modification of Location Data
Client will be responsible for keeping the Location Data up to date, including making any modifications or deletions as needed to ensure the accuracy of the Location Data, and publishing such modification or deletion through the NearMeNow Service in a timely manner. Any deletion, addition or modification of Location Data by Client will not affect the sublicense that NCH has granted to its Third Party Vendors, Publication Partners, or their clients, provided such deleted, added or modified Location Data was already used by said Publication Partner and/or its Clients at the time of the deletion, addition, or modification. NCH is under no obligation to ensure the deletion of the concerned Location Data from any products, systems or devices that are under the control of any Third Party Vendor, Publication Partner, its clients or any other third party after the Location Data (or a part of the Location Data) has been used by the Third Party Vendor, Publication Partner and/or one of its clients, and NCH is not required to ensure a non-modification or non-usage of the concerned Location Data by such Third Party Vendor or Publication Partner, its clients or a third party. Client will be able to request any Third Party Vendor or Publication Partner to modify or delete the Location Data, in whole or in part, at any time during or after the Minimum Term or any Renewal Term.