Windows Server 2012 Go Live

Terms of Service

1. Use of Services

1.1. Applicable Use Policy. The Cbeyond Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on Cbeyond's Web site (or such other location as Cbeyond may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. Cbeyond RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.

1.2. Material and Product Requirements. Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on Cbeyond's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Cbeyond. Cbeyond will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", Cbeyond has the option at any time to reject this material. Cbeyond will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Cbeyond. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Cbeyond's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Cbeyond.

1.3. Bandwidth and Storage Usage. You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out.
1.4. Server Uptime guarantee. Cbeyond makes no guarantee related to server uptime due to the pre-release status of the software being used on the equipment. You also agree that this software is a pre-release version. It may not work the way a final version of the software will. Microsoft may change it for the final, commercial version. Microsoft also may not release a commercial version.
1.5. Cbeyond may from time to time schedule network maintenance periods resulting in network interruptions. These maintenance periods will be announced in advance via e-mail to the primary technical contact for the account. These maintenance periodsshall be exempt from the uptime guarantee contained herein, and a credit will be provided only in the event that the scheduled downtime extends beyond the announced maintenance window. Cbeyond agrees to make all reasonable effort to limit direct maintenance on customer equipment to one (1) time each week. The preferred maintenance window will be Sunday morning from 1:00AM EST to 3:00AM EST. Customer acknowledges that Cbeyond may from time to time be required to perform emergency maintenance activities to the network and supporting equipment. Customer agrees that these maintenance activities fall outside of the scope of customer operated equipment and may lead to downtime and latency. Customer waives all claims relating to these announced indirect maintenance outages.


2. Enforcement

2.1. Investigation of Violations. Cbeyond may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Cbeyond will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

2.2. Actions. Cbeyond reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, Cbeyond may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Cbeyond's systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Cbeyond which, in Cbeyond's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Cbeyond to civil or criminal liability or public ridicule. It is Cbeyond's policy to terminate repeat infringers. Cbeyond's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services.

2.3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect Cbeyond's systems and customers, or to ensure the integrity and operation of Cbeyond's business and systems, Cbeyond may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Cbeyond's servers and systems. Cbeyond also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

3. Intellectual Property Rights

3.1. Your License Grant to Cbeyond. You hereby grant to Cbeyond a non-exclusive, worldwide, and royalty-free license for the term in which services are provided to you to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Cbeyond a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

3.2. Cbeyond Materials and Intellectual Property. All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Cbeyond or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Cbeyond to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Cbeyond or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Cbeyond during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

3.3. Trademarks. You hereby grant to Cbeyond a limited right to use your trademarks, if any, for the limited purpose of permitting Cbeyond to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.

4. Warranty; Warranty Disclaimer.

4.1. Customer and/or Third Party Acts. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.
This limitation applies to
It also applies even if Cbeyond knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.
Cbeyond is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, Cbeyond is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond Cbeyond's reasonable control.

4.2. No Express or Implied Warranty. ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY Cbeyond UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT Cbeyond EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH Cbeyond'S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. Cbeyond DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Cbeyond DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

4.3 Your Warranties and Representations to Cbeyond. You warrant, represent, and covenant to Cbeyond that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (e) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (f) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

5. Limitation and Exclusion of Liability

5.1. Interruption of Service. You hereby acknowledge and agree that Cbeyond will not be liable for any temporary delay, outages or interruptions of the Services. Further, Cbeyond shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

6. Indemnification. You will defend, indemnify and hold harmless Cbeyond and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your improper or illegal use of the Services; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Cbeyond; or (iii) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).

7. Miscellaneous

7.1 Confidentiality. The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.

7.2. Notices. All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.

7.3. Choice of Law and Forum. THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF KENTUCKY, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN KENTUCKY, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

7.4. Entire Agreement. This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.

7.5. No Fiduciary Relationship; No Third-Party Beneficiaries. Cbeyond is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

7.6. Assignments. You may not transfer or assign your rights, duties, or obligations under this Agreement without Cbeyond's prior written consent. Cbeyond may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.

7.7. No Waiver. Cbeyond's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Cbeyond's right to subsequently enforce such provision or any other provisions under this Agreement.

7.8. Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.9. Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, and your indemnification obligations shall survive the termination or expiration of this Agreement.

Acceptable Use Policy

As a provider of web site hosting, and other Internet-related services, Cbeyond offers its customers (also known as subscribers), and their customers and users, the means to acquire and disseminate a wealth of public, private, commercial, and non-commercial information. Cbeyond respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, Cbeyond reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, Cbeyond has developed an Acceptable Use Policy ("AUP"), which supplements and explains certain terms of each customer's respective service agreement and is intended as a guide to the customer's rights and obligations when utilizing Cbeyond's services. This AUP will be revised from time to time. A customer's use of Cbeyond's services after changes to the AUP are posted on Cbeyond's web site, www.Cbeyond.com, will constitute the customer's acceptance of any new or additional terms of the AUP that result from those changes.

One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet's openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When subscribers obtain information through the Internet, they must keep in mind that Cbeyond cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that subscribers may acquire. For this reason, the subscriber must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because Cbeyond cannot monitor or censor the Internet, and will not attempt to do so, Cbeyond cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal Internet communications.

When subscribers disseminate information through the Internet, they also must keep in mind that Cbeyond does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over Cbeyond's network and may reach a large number of people, including both subscribers and nonsubscribers of Cbeyond, subscribers' postings to the Internet may affect other subscribers and may harm Cbeyond's goodwill, business reputation, and operations. For these reasons, subscribers violate Cbeyond policy and the service agreement when they, their customers, affiliates, or subsidiaries engage in the following prohibited activities:

Spamming -- Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming"). It is not only harmful because of its negative impact on consumer attitudes toward Cbeyond, but also because it can overload Cbeyond's network and disrupt service to Cbeyond subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, Cbeyond has the discretion to determine from all of the evidence whether the email recipients were from an "opt-in" email list.

Intellectual Property Violations -- Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. Cbeyond is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also Cbeyond's policy to terminate the privileges of customers who commit repeat violations of copyright laws.

Obscene Speech or Materials -- Using Cbeyond's network to advertise, transmit, store, post, display, or otherwise make available pornography or obscene speech or material. Also, Cbeyond is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through Cbeyond's network.

Defamatory or Abusive Language -- Using Cbeyond's network as a means to transmit or post defamatory, harassing, abusive, or threatening language.

Forging of Headers -- Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.

Illegal or Unauthorized Access to Other Computers or Networks -- Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as "hacking"). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).

Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities -- Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.

Facilitating a Violation of this AUP -- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.

Export Control Violations -- Exporting encryption software over the Internet or otherwise, to points outside the United States.

Usenet Groups -- Cbeyond reserves the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the AUP.

Other Illegal Activities -- Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.

Other Activities -- Engaging in activities, whether lawful or unlawful, that Cbeyond determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.

As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with the subscriber. Cbeyond will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with Cbeyond policy or applicable law. When Cbeyond becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate.