Terms and Conditions
1. Term and Payment for Services
2. Use of Services
4. Intellectual Property Rights
5. Warranty; Warranty Disclaimer
6. Limitation and Exclusion of Liability
FenixVPS. ("FenixVPS") is a premium provider of comprehensive hosting solutions. This Agreement for Services ("Agreement") shall govern any and all purchases or usages of any services provided by FenixVPS or any agents or affiliates acting on behalf of FenixVPS (" Services").
You are not authorized to use any of the Services unless you accept and abide by the terms set forth in this Agreement.
NOTWITHSTANDING, BY YOUR USE OF ANY OF THE SERVICES, YOU ARE ACKNOWLEDGING THAT YOU HAVE BOTH READ AND UNDERSTOOD THE TERMS SET FORTH IN THIS AGREEMENT AND ARE THEREBY AGREEING THAT YOU SHALL BE BOUND BY ANY AND ALL TERMS AND CONDITIONS SET FORTH HEREIN IN ADDITION TO ANY ACCEPTABLE USE REGULATIONS OR POLICIES THAT ARE REFERENCED HEREIN.
The terms and conditions set forth in this Agreement may be modified, amended or changed at the discretion of FenixVPS. FenixVPS also reserves the right to modify, change or amend any guidelines or policies that are incorporated by reference; and to determine whether they shall apply to current customers, future customers or both. New modifications, amendments and changed go into effect once they are posted on the FenixVPS Web site. (the "Site). If you continue to use any Services provided by FenixVPS or any affiliate working on behalf of FenixVPS, such usage shall be constituted as acceptance of any changes or modifications that have been made.
1. Term and Payment for Services
1.1 Term: This Agreement shall last for a duration labeled as the "Initial Term," to be indicated by your choices on the Order Form that you must fill out on this Site at the point in time at which you register to utilize any of our Services. "Initial" shall be defined as the moment when the user has paid the fee and used the services. Unless you provide FenixVPS with definitive notice that you wish to terminate services no more than five (5) days prior to the end date of your Initial Term, this Agreement shall be renewed automatically (this is the "Renewal Term) once the Initial Term ends for the period of time that was selected for the Initial Term.
To provide notice to FenixVPS that you wish to terminate services at the end of your Initial term, you must click the "Cancel Service" button that you can find on the Site or take action as otherwise described within this Agreement. Once you click "Cancel Service," you will be required to provide information to FenixVPS for customer identification purposes thereby enabling FenixVPS to locate your account and identify you as the account holder.
Notification of termination goes into effect five (5) days after FenixVPS has received the request to terminate services. After a client has paid for the services they are entitled to use the services they have purchased. FenixVPS Network will deliver the services purchased as set forth in the contract governing the Initial Term.
1.2. Termination Policy: It is at the discretion of FenixVPS to cancel service of any customer or client at any point in time. If you wish to initiate a termination action, you must provide notification to FenixVPS as set forth in Section 1.1. It is also at the discretion of FenixVPS to choose to terminate this Agreement at any point in time for any reason they wish once they have provided you with written notice no less than five (5) days prior to the date when the service will be terminated.
1:3 Default and Cure: Should either party on either end of this Agreement default in performance of any obligations or duties that pertain to this Agreement (including any failure to make payments that are due under this Agreement), in the event that the default is not cured within a five (5) day time period after the party that is not in default has notified the defaulting party to inform them of the default, then whichever party is not in default, after providing the defaulting party with notice, shall be entitled to terminate this Agreement.
1:4 Charges: By entering into this Agreement with FenixVPS you are agreeing that you will pay all of the charges that are attributable to you utilizing any Services, and that payments shall be at whatever the current rates and prices that FenixVPS is charging for services, exclusive of any taxes that may apply. You are also responsible to pay any local, state and/or federal taxes assed for excise, value added, duty, use and any and all other taxes that are in any way associated with the Services, with the exception of taxes that are associated with FenixVPS's net income.
1.5. Payment: No account shall be activated until payment is received. Payments are due every thirty (30) days after the first date of payment. Customers will receive notification of the next payment due ten (1) days in advance of the due date via email. Should a customer fail to pay, the account shall be terminated. The account may be reactivated but will incur a $5.00 reactivation fee. All payments must arrive at the designated time and there will be no exceptions to the rule. Charges for any Services must always be paid for in advance and at the prices that are then current and application to the specific Services. By entering into this Agreement you are agreeing that you will pay via a credit card or debit card, or that you will pay an invoice with another form of payment. Should you elect to pay via a credit card or debit card at the point of registration for Services, you are authorizing FenixVPS to charge that credit card or debit card on all payment dates to compensate for any charges that apply to the account in question. If you make any changes to the card that is associated with your account (including but not limited to any account number changes, account cancellations or the expiration of the card or the account associated with it), to your billing address, or to any other type of information that results in FenixVPS being unable to or prohibited from charging your account, you must notify FenixVPS before your next payment date and must submit an alternative form of payment on your next payment date. Should you elect to receive invoices, FenixVPS will send you an invoice for Services that apply to any time period that you have registered to utilize the Services. You are also agreeing that you will pay FenixVPS the amount that appears on every invoice by the date that appears on the invoice. Should you fail to pay the full amount and any taxes that apply by the due date, you will both you will receive late charges and have your account terminated.
1.6. Refund Policy
Refund Policy: Each FenixVPS customer has the right to a fourteen (14) day "trial version" of our package. During this fourteen (14) day time period, the customer shall have the right to request a full refund or cancel the services if they are not entirely satisfied with said services. After the fourteen (14) day time period has passed, the customer shall not be entitled to receive any type of refund, and in addition they shall be billed for services on all payment dates thereafter until they have provided FenixVPS with notice that they intend to cancel services as set forth in 1:2 and in other sections of this Agreement. This refund policy shall only apply to hosting Services provided by FenixVPS. FenixVPS reserves the right to approve or decline such requests, on a case by case basis. Services that have been suspended or terminated for any reason are not eligible for refunds. In any case, refunds are provided at the sole discretion of FenixVPS management.
2. Use of Services
2.1. Applicable Use Policy: The following is the Acceptable Use Policy ("Use Policy) that shall govern any and all Services provided by FenixVPS. The Use Policy is posted at the FenixVPS Website and/or any other locations designated by FenixVPS) and this Use Policy may be updated at the discretion of FenixVPS.
BE SURE TO READ AND UNDERSTAND THE USE POLICY. IF YOU USE ANY SERVICES PROVIDED BY FenixVPS YOU ARE AGREEING THAT YOU SHALL BE BOUND BY AND ACT IN ACCORDANCE OF THE TERMS SET FORTH WITHIN THE USE POLICY AND BY ANY SUBSEQUENT MODIFICATIONS. FURTHERMORE, FenixVPS SHALL RESERVE THE RIGHT TO CANCEL OR TERMINATE YOUR ACCOUNT IN RESPONSE TO ANY ACTION, INACTION OR ANYTHING ELSE THAT IS IN VIOLATION OF THIS AGREEMENT OR THE USE POLICY.
2:2 Material and Product Requirements: Unless the matter has been addressed in a separate agreement made with FenixVPS, all data or material that you place onto FenixVPS's equipment or system must be in "server-ready" condition, which means that it must be in a form that does not require any additional manipulation or modification by FenixVPS. FenixVPS will not make efforts to validate any of the information that you provide for correctness, usability or content. FenixVPS reserves the right of rejecting any material that is not "server-ready." Should this occur to you, you will receive notification of FenixVPS's refusal to accept the material and you will be provided with an opportunity to modify or amend any rejected material so that it satisfies the requirements and the needs of FenixVPS. Use of any Services covered by this agreement requires an exact level of 6g in reference to the use of Internet protocols, software and Internet languages. The necessary knowledge level will vary in relation to the use that is anticipated and the content that you wish to be contained within your Web site. The responsibility to possess the knowledge needed to develop, create and maintain your website is yours alone. FenixVPS is in no way responsible for providing you with the necessary knowledge or for providing you any form of customer support that is not described within the materials for the Services that you and FenixVPS are agreeing upon.
2.3. Bandwidth and Storage Usage: You are also agreeing that your use of any Services that this Agreement pertains to shall never exceed the bandwidth limits and storage usage limits that pertain to said Services. Should your bandwidth use or storage space use exceed the number of megabytes per month that is set forth in the terms of your agreement, you are hereby agreeing that you will pay any additional charges that are associated with you exceeding the set limits.
2.4. Content: Each and every Service that is provided by FenixVPS is intended only for uses and purposes that are in accordance with the laws of the United States Federal, Local and State laws and are to be used only for lawful purposes. All transmission, presentation and storage of any material, data or information in any manner that violates any United States Federal, Local or State law is hereby prohibited; including but not limited to: threatening material, obscene material, copyrighted material, material that may in anyway jeopardize national security, material that is protected via trade secret laws or material that is prohibited or protected by any other law. By entering into any agreement with FenixVPS each and every subscriber is agreeing to indemnify FenixVPS and to hold them harmless in regards to any claim that is in any way connected to that subscriber's usage of any services provided by FenixVPS or by any affiliate acting on behalf of FenixVPS and from any action by a FenixVPS subscriber that results in damage to the subscriber and/or any other party or subscriber.
The following is a list of some types of content and links that are hereby prohibited:
• Pirated Software
• IRC & any Software Related to IRC
•Nulled Script Sites, Warez Sites and Warez Linking
• Hacking Programs, Hacking Sites and/or Hacking Archives
• Any Distributions of Any Type of File, Including Music or Movie Files For Which the Account Holder Does Not Hold a Copyright.
(This list is in no way an exhaustive list, and FenixVPS reserves the right to prohibit any material that they choose to prohibit for any reason).
3.1. Investigation of Violations: Should FenixVPS suspect a violation or receive a report of a violation, it may investigate the alleged violation of this Agreement and the policies set forth herein and shall take action as is appropriate and reasonable in regards to the specific circumstances in order to provide protection to its customers, facilities, systems and any associated third parties. FenixVPS agrees that they will never review, access or read the contents of any email or any other form of electronic communication for any purpose or in any manner that is not required or permitted in regards to an applicable legal process or law.
3:2 Actions: FenixVPS hereby reserves the absolute right to remove or restrict any content from its servers if it is in violation of this Agreement, if it is in violation of any policies or guidelines that are related to this Agreement, if it is questionable or objectionable, if it infringes on the rights of any third party and/or if it is a potential violation of any law. If we learn of any possible violation of this Agreement or the guidelines or policies that are related to this agreement, FenixVPS reserves the right to take corrective action immediately, including but in no way limited to: (2) the issuance of a warning, (b) termination of Services or suspension of Services, (c) the restriction of or prohibition of any content or use that is hosted via any FenixVPS system, and/or (d) removing or disabling any text links or hypertext links that direct users to the Web sites of third parties, removing or disabling any content not supplied by FenixVPS, and removing or disabling any content that you distribute or make available for distribution by way of FenixVPS Services, if FenixVPS decides that they are potential legal violations or that they potentially infringe any rights of a third party or any law in a way that may expose FenixVPS to any type of civil liability, criminal liability or public ridicule. FenixVPS also reserves the right of terminating any customers who are repeatedly infringing; and shall be permitted to take any corrective action they deem necessary, but FenixVPS is not obligated in any way to monitor your websites or to exert any form of editorial control over any and all information that you make available to be distributed via the Services described within this Agreement and any other agreement you make with FenixVPS. Should FenixVPS elect to take corrective action in response to any potential violation, FenixVPS is in no way obligated to provide you with a refund for any fees that you have paid to FenixVPS prior to the corrective action.
3:3: Disclosure Rights: FenixVPS reserves the right to access and/or disclose and all information that it should deem appropriate or necessary in compliance with any law that is applicable and in accordance with any lawful request from a governmental entity, for the protection of other FenixVPS customers and/or systems, and to maintain the integrity and any and all operations concerns related in any way to FenixVPS's business and FenixVPS systems. This includes (but is not limited to) all user profiles and user information (names, contact information, email addresses, etc.), usage history, IP addresses, traffic information and all content that shall ever reside on any of FenixVPS's systems or servers. FenixVPS shall furthermore reserve the right of reporting any activities that it believes may be in violation of regulation or law to the proper law enforcement agencies, individuals and/or officials or whatever other third parties it deems appropriate.
4. Intellectual Property Rights
4.1. Your License Grant to FenixVPS: By entering into this Agreement you are granting FenixVPS non-exclusive, royalty-free, worldwide license for the time period set forth in the Initial Term and also in any Renewal Term that should come thereafter to use your content in any way that is necessary in order to render and operate the Services that you are entitled to receive in accordance with this Agreement. In addition, you are expressly: (a) granting a license to FenixVPS that allows FenixVPS to cache any materials that are to be distributed or that are provided to FenixVPS for distribution in relation to the Services, (this also pertains to any content that has been supplied to FenixVPS via third parties); (b) agree that any caching is in no way an infringement of the intellectual property rights of any third party or any intellectual property rights that you yourself hold personally or that your business holds.
4.2. FenixVPS Materials and Intellectual Property: Any materials, computer software (whether in source code form or in object code), information and/or data that is provided to the customer via FenixVPS or any agent or supplier in accordance with this Agreement, as well as any knowledge, know-how, equipment, processes, methodologies and techniques that FenixVPS uses to provide Services to you, will now and always remain the exclusive property of FenixVPS or FenixVPS's agents or suppliers; and this applies with no limits to every associated trademark, patent, copyright, trade secret and any other type of proprietary right including but not limited to any products, software programs, technological innovations and/or any methods that are used, disclosed, developed or created during the term of this Agreement.
This agreement expressly forbids any type of unauthorized reverse engineering, unauthorized copying, decompiling and/or the creation of anything that could be construed to be a derivative work that has been based on any of the above elements and items that are described in 4:2, with the exception of anything that is specifically permitted within this Agreement. If you violate any copyright, patent right, trade secret right, or any other right and thus fail to abide by the terms set forth in this Agreement, you can be held legally responsible.
4.3. Trademarks: By entering into this Agreement you are hereby granting FenixVPS the limited right of using any trademarks if FenixVPS is required to do so in order to successfully fulfill its duties related to this Agreement. This is in no way to be regarded as a trademark license, and FenixVPS does not claim any additional rights that are related to the trademarks that this Agreement pertains to. The rights granted via this Agreement include no sublicenses and no right to use your trademark in any manner that is outside the scope of Services that FenixVPS is providing in relation to this Agreement. Upon termination of this Agreement, any limited trademark rights that are granted in this section of the Agreement are also terminated.
5. Warranty Disclaimer
5.1. Customer and/or Third Party Acts: FenixVPS is in no way responsible for any nonconforming Services that are in any way caused by you, your representatives or your customers. Additionally, FenixVPS is in no way responsible for any loss of data or corruption of any data during transmission, or for any failures to receive or sent data that are related to any events that are beyond the reasonable and foreseeable control of FenixVPS.
5.2. No Express or Implied Warranty:
EVERY SYSTEM, SERVICE, PRODUCT OR ANYTHING ELSE THAT FenixVPS PROVIDES IN RELATION TO THIS AGREEMENT SHALL BE PROVIDED WITHOUT THE ADDITION OF ANY EXPRESS OR IMPLIED WARRANTY LAW OR FACT. YOU ARE ALSO KNOWLEDGING AND AGREEING TO THE FACT THAT FenixVPS IS IN NO WAY RESPONSIBLE FOR ANY OF THE CONTENT OR INFORMATION THAT PASSES THROUGH ANY of FenixVPS's NETWORK HUBS, COMPUTERS, POINTS OF PRESENCE OR THE INTERNET. FURTHERMORE, FenixVPS IN NO WAY WARRANTIES THAT SERVICES WILL NEVER BE INTERRUPTED OR THAT THEY WILL BE ENTIRELY SECURE OR COMPLETELY ERROR FREE, AND ALSO MAKES NO WARRANTY IN RESPECT TO ANY COPYRIGHT, PATENT, TRADEMARK, OR TRADE SECRET. EVERY SERVICE THAT IS PREFORMED IN RELATION TO THIS AGREEMENT IS PERFORMED ON AN "AS IS" BASIS AND THERE ARE NO ADDITIONAL WARRANTIES RELATING TO FAILURES OF ANY COMMUNICATION SYSTEM, EXCLUDING THOSE THAT ARE EXPRESSLY SET FORTH WITHIN THIS AGREEMENT. FenixVPS MAKES NO WARRANTIES AND HEREBY DISCLAIMS AND IN ADDITION YOU ARE HEREBY WAIVING ALL RELIANCES UPON, ANY WARRANTIES OR REPRESENTATIONS, WHETHER THEY SHOULD ARISE BY LAW OR OTHERWISE, IN REGARDS TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESSS FOR ANY PURPOSE WHATSOEVER, WARRANTY OF CONDITIONS OF QUALITY AND ANY WARRANTIES THAT ARE IN RELATED TO COPYRIGHTS, PATENTS, TRADE SECRETS OR ANY OTHER TYPE OF TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to FenixVPS: By entering into this agreement you are making the following representations, warranties and covenant to FenixVPS: (a) you are a minimum of eighteen (18) years old or you are a validly and legally existing entity that is duly organized; (b) you have any legal rights that you must possess in order to enter into this Agreement; (c) the Services will only be used for lawful purposes and will only be used in accordance with the terms set forth in this Agreement and any related guidelines and/or policies; (d) you are entirely financially responsible for your account's usage; (e) in regards to all hypertext links that direct to Web sites belonging to third parties or to other content, you have obtained or will soon obtain authorization for their existence; (f) you have already taken steps to verify or will soon verify that all materials that you make available for distribution or that you yourself distribute are accurate (this includes all content, warranties, descriptive claims, guarantees, address where the business is occurring, nature of the business or anything else requested; and (g) none of the content or software that you have installed or have provided to FenixVPS in any way infringes upon or violates the rights that belong to any third party (included but in no way limited to intellectual property rights), does not violate any law, ordinance or regulation.
6. Limitation and Exclusion of Liability
6.1. Limitations: UNDER THIS AGREEMENT, FenixVPS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES EVEN IF FenixVPS HAS BEEN NOTIFIED THAT SUCH DAMAGES MAY BE POSSIBLE. FenixVPS IS NOT LIABLE FOR ANY TYPE OF UNAUTHORIZED ACESS TO, ALTERATION, DESTRUCTION OR THEFT OF ANY INFORMATION THAT HAS BEEN PROVIDED TO FenixVPS OR THAT HAS BEEN DISTRIBUTED IN ACCORDANCE WITH THE TERMS PERTAINING TO SERVICES RENDERED BY FenixVPS. ANY LIABILITY THAT SHOULD FALL ON FenixVPS FOR ANY REASON WHATSOEVER OR IN ACCORDANCE WITH OR RELATED TO ANY CAUSE OF ACTION AT ALL IS HEREBY LIMITED TO NO MORE THAN THE PRECISE AMOUNT THAT YOU HAVE PAID TO FenixVPS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT DURING THE LAST THIRTY (30) DAYS THAT OCCURRED IMMEDIATELY BEFORE THE DATE THAT THE CLAIM WAS ACCRUED. ADDITIONALLY, THIS LIMITATION SHALL APPLY TO EVERY CAUSE OF ACTION THAT SHALL AGGREGATE OR OCCUR, INCLDUING BUT NOT LIMITED TO BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, MISREPRESENTATIONS, AND ANY OTHER TYPE OF TORT. EVERY FEE ASSESSED FOR ANY SERVICE OFFERED BY FenixVPS OR BY ANY AGENT OR SUPPLIER ACTING ON BEHALF OF FenixVPSARE ALWAYS AND WILL ALWAYS BE BASED ON THE ALLOCATION OF RISK THAT IS SET FORTH HEREIN. BY ENTERING INTO THIS AGREEMENT YOU ARE HEREBY RELEASING AND AGREEING TO HOLD HARMLESS FenixVPS FROM ANY LIABILITIES, OBLIGATIONS AND CLIAMS THAT EXCEED THE LIMITATION SET FORTH IN SECTION 6:1 OF THIS AGREEMENT. THERE ARE SOME STATES WHICH DO NOT ALLOW THE FULL EXCLUSION OR CERTAIN LIMITATIONS FOR LIABILITY THAT ARE RELATED TO INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND FOR THOSE STATES WE LIMIT OUR LIABILITY TO THE FULL EXTENT WHICH IS PERMITTED BY THE LAWS OF THAT STATE AND BY FEDERAL LAW.
6:2 Interruption of Service: By entering into this agreement you are agreeing and acknowledging that under no circumstances will FenixVPS ever be held liable for any outages, temporary delays or any other sort of interruption of Services. In addition, FenixVPS will not and shall never be held liable for nay failures or delays that are related to the performance of obligations contained within this Agreement or within the terms of any other agreement, including those that result from a perceived Act of God or cause that is outside of the reasonable control of FenixVPS including but not limited to packet loss, communications failure, mechanical issues, electronic issues, server crashers or the failure of any thirt-party supplier.
6.3. Maintenance: You additionally agree and acknowledge that FenixVPS will reserve the right of temporarily suspending services when they need to be repaired or to maintain them, or to upgrade any of the related networks or systems. FenixVPS will make reasonable efforts to provide you with advance notification of upcoming maintenance but is in no way obligated to inform you that such maintenance is to be taking place.
By entering into this Agreement you are hereby agreeing that you will indemnify, defend and in every case hold harmless FenixVPS and any directors, officers, shareholders, agents, consultants, employees, suppliers and affiliates ("Indemnities") from any claims whether threatened or actual, and from any demands, suit, cause of action, formal proceedings, informal proceedings, damages, losses, penalties, fines, costs, expenses and liabilities of any kind whatsoever, including but in no way limited to court costs, attorney's fees or any other expenses that are incurred, sustained or alleged against any Indemnities by any firm, person, governmental authority, corporation, partnership or any other type of entity for any reason that is arising from or that is in any way related to: (i) your breach or violation of any condition, representation, term or warranty contained within this Agreement or any related or unrelated FenixVPS policy or guideline; (ii) your conduct or conduct from one of your Agents, employees, representatives or anyone else acting on your behalf, including but not limited to gross negligence, negligence and/or willful misconduct; (iii) your use or any use by a person or entity acting on your behalf of the Services, including all uses whether legal, improper or illegal; (iv) any claim that is submitted by one of your former employees who was terminated in relation to or in connection with the execution of this Agreement and the Services that FenixVPS shall be performing; or (v) any claim that in any way relates to a service or product you are offering, or that is in any way related to your installation of or usage of any software from a third party, including but in no way limited to any advertising, trade secrets, trademark infringement, copyright infringement, patent, product liability claims or non-proprietary rights of a third party (including but again not in any way limited to libel, publicity, defamation or violation or privacy).
8.1 Confidentiality: All parties involved in this Agreement agree that every instance of Confidential Information (as defined herein) that is communicated from one party to the other shall be done in complete confidence and shall never be used for any purpose not set forth within this Agreement, and will never be disclosed to a third party without the other party first providing written consent except for in manners that have been explicitly described within this Agreement.
"Confidential Information" is hereby defined as any form of information including but in no way limited to printed communications, verbal communications, information that is stored in printed form, information that is stored in optical form, and information that is stored in electromagnetic format that is in any way related to the Services; any data processing programs, computer programs or software or electronic commerce programs or software; electronic data processing techniques, systems, routines or subroutines; any information that in any way incorporates or is in any way based on proprietary information that belongs to either party; or any information pertaining to financial affairs, business concerns, product pricing, financial strategies, technical systems, marketing or financial conditions of either party; or any type of information that pertains to, relates to or concerns any customers or vendors that work with either party; and/or any data that is exchanged between one of the parties and any of its vendors or customers. The following are included exceptions to Confidential Information: information or data that exists in the public domain; (2) information that has been independently developed by some party how has not referenced any information that was disclosed via this Agreement; (3) any information that has been received via a third party without restriction, and/or any manner of breach of this Agreement or any similar Agreement. The disclosure of Confidential Information in order to comply with a legal requirement, accounting requirement or regulatory requirement that is beyond the control of the party making the disclosure is not a violation of this provision, but in the event of such a disclosure, the party who will be making the disclosure must provide the other party with written notice to provide them with a chance to challenge the disclosure. In the event that either Party receives a subpoena regarding such disclosure, that Party must provide the other party with written notice to allow them to have a chance to challenge the resulting disclosure of the related Confidential Information. Once this Agreement is terminated or in response to the written request issued by the party making the disclosure, each Party will immediately return every instance of Confidential Information back to the other party. Furthermore, after the termination of this Agreement, this provision shall continue to be in effect and be enforceable for a time period of two (2) years.
8:2 Notices: Any notice, request, report or any other type of communication that is provided in regards to this Agreement must always be in writing, and will be considered to be duly given once it is hand delivered, delivered via overnight courier service, by electronic mail, or by fax.
8:3 Choice of Law and Forum: THIS AGREEMENT IS TO BE GOVERED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, NO REFERENCE IS BEING MADE TO THE RULES THAT WILL SPECIFICALLY GOVERN CHOICE OF LAWS. ALL ACTIONS THAT ARE IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT MUST BE BROUGHT TO THE CALIFORNIA STATE OR FEDERAL COURTS. YOU ARE HEREBY IRREVOCABLY CONSENTING TO PROVIDE JURISDITION TO THE AFOREMENTIONED COURTS.
8.4. Entire Agreement: The entirety of this Agreement and any and all guidelines or policies that are referenced by or incorporated within this Agreement shall be considered the entire Agreement that the parties are entering into and may never be subject to oral modifications or alterations, and may only be modified or altered by an Agreement in writing that both parties have signed.
8.5. No Fiduciary Relationship; No ThirdParty Beneficiaries: FenixVPS is not your fiduciary, agent, trustee or any other type of representative of yours; and you should not imply that from anything expressed or mentioned within this Agreement as it is not intended to provide any legal or equitable rights, remedies or claims to any person that is not one of the parties included within this Agreement. This Agreement and any and all warranties, representations, covenants, provisions and conditions herein are only intended to be for the exclusive and sole benefit of the parties expressed herein.
8.6. Assignments: This Agreement does not permit you to transfer or your rights or to assign any of your obligations, rights or duties set forth within this Agreement without first having obtained written consent from FenixVPS. FenixVPS is permitted to assign any of its obligations and/or rights under this Agreement and may elect to utilize agents and/or affiliates to assist in the performance of duties and to assist in the exercising of its rights that pertain to this Agreement without needing to first obtain your consent. This Agreement will also be enforceable, inure to the benefit of, and be binding on and against the parties and any respective assignees or successors.
8.7. No Waiver: Should FenixVPS fail to enforce strict performance of any portion, part or proviso contained within this Agreement that does not constitute that FenixVPS is waiving the right of subsequently enforcing that provision or any of the other provisions contained within this Agreement.
8.8 Severability: In the event that any portion of or provision contained within this Agreement is deemed to be void, illegal, unenforceable or void in part or in whole, that portion is to be severed and shall only be enforced to the extent that is legally permissible. The remainder of the Agreement and all parts and provisions contained within will always remain in effect and in full force. Should any provision contained within this Agreement is deemed unenforceable, void or invalid in respect to a certain application, it will remain in effect and in full force in regards to all other applications.
8.9 Survival: Every provision contained within this Agreement that pertains to intellectual property rights, your warranties, your indemnification obligations, exclusion of liability and your payment obligations shall in every instance survive any expiration, termination or destruction of this Agreement.
8.10 Modification: FenixVPS furthermore reserves the right and permission of adding, modifying or deleting any part or provision of its Acceptable Usage Policy and its Terms and Conditions at any time without needing to provide notice.