These Hosting Terms & Conditions (the “Terms”), along with an applicable Work Order (if any), between Design Extensions, LLC (“we”, “Company”, and “us”) and you or the company or organization which you represent (“you” or “Customer”) form an agreement between you and Company, and are collectively with the applicable Work Order (if any) referred to herein as the Agreement.
We will provide support and maintenance relating to the hosting of your site(s) and/or application(s) on a third party’s (the “Hosting Provider”) physical and/or virtual server and related services (the “Services”), as provided herein and as may be further specified from time to time in any work order(s) that you and we agree upon. For the avoidance of doubt, the Services do not include the review, modification or creation of website or application code, or any work on equipment or systems located outside of the Hosting Provider’s network. The Services include only your production environments, unless we otherwise expressly agree. The Services are intended to supplement your internal resources by addressing issues that are expressly identified through our support channel (as described below).
Any services outside of the scope of the Services are “Separate Services.” Though we are not under any obligation to perform Separate Services, we may agree to do so, in our sole discretion.
Unless specified otherwise in the applicable Work Order, the term of this Agreement is for twelve (12) months (along with any auto-renewal period noted in the applicable Work Order), and may be terminated with 60 days’ advanced written notice to the other party.
To ensure proper use and operation of the Services, Customer agrees:
a. not to tamper with, alter, adjust, add to, disturb, move, reconfigure, disable, remove or otherwise interfere with the systems that provide connection or use services hosted by Hosting Provider, including (a) Customer locally installed software that interfaces with software hosted by Hosting Provider, and (b) local equipment used to connect to the internet, provide local network switching functions, local printing functions, and local domain functions;
b. that any software installed on Customer’s systems will be properly licensed and in compliant with applicable software vendor’s license terms and use agreements (and to maintain all applicable maintenance agreements on software purchased and used by Customer and its employees); and
c. to maintain active anti-virus protection software on any systems that will access Hosted Provider’s hosted systems to prevent the potential infection of computer files managed and stored by Hosted Provider on behalf of the Customer.
Customer understands that performance of hosted services is dependent upon having a quality carrier service for accessing the internet. Customer is responsible for the cost and maintenance of all internet or other communication circuits required for dutiful communication with hosted systems. Customer is responsible for maintaining communication circuits able to satisfy the quality and bandwidth requirements of their applicable systems. Issues related to the type of applications hosted, number of staff members concurrently accessing systems, and the size of data accessed affect the bandwidth requirements of the communication circuits. Quality of the communication circuits affects the reliable transfer of data packets from the Customer’s systems to hosted systems. Customer access to the internet is beyond the control of Company.
Customer is solely responsible for complying with the specific licensing requirements of software applications hosted by Company on behalf of the Customer. In addition to licensing fees, Customer is responsible for the payment of any applicable maintenance, support, and up-grade fees that might apply to the software applications.
Customer understands that 100% protection of Customer systems against computer viruses, unauthorized intrusion, and security threats cannot be guaranteed. As such, Customer assumes all risk of computer viruses and will not hold Company responsible unless the computer virus infection is caused by the gross negligence or willful misconduct of Company or any of its agents.
In conjunction with the Hosting Providers, we may offer various hosting package options (“hosting levels”). The details of the package and hosting level you select, including any minimum term required therefor, may be detailed in the applicable Work Order.
You agree to pay periodic service fee in advance of each billing period. Unless otherwise expressly agreed in writing, the service fee is subject to change upon thirty (30) days written notice, or immediately if you increase usage (e.g., bandwidth or disk space usage) to a level that increases the Hosting Provider’s fees or your hosting level, in which case we reserve the right to increase the service fee to the current hosting level, effectively immediately.
If we are receiving payment via credit card or account debit, you authorize us (and our third party service providers) to charge your card or deduct from your account the amount of the service fee in advance each billing period. If you are paying by check or wire transfer you agree to make all payments within ten days of receipt of our invoice.
If you incur any additional fees or charges, such as transfer fees, setup fees or administrative fees, from the Hosting Provider other than the standard recurring fees, you will pay the amount billed by the Hosting Provider plus a ten percent (10%) markup. All Separate Services are billed separately.
All payments shall be made in United States Dollars, by credit card, electronic debit, wire transfer or check. Late payments will incur interest at the rate of 18% per annum (or the highest rate permitted by applicable law if such rate is lower) calculated and applied daily based on a 365-day year. All deposits and advance payments are nonrefundable. All fees are exclusive of taxes, which shall be billed separately, where applicable.
Services can be suspended for accounts that become more than twenty (20) days delinquent.
Hosting Support Channel
All support and maintenance issues and requests must be made through the support channel provided by us (the “Hosting Support Channel”), and include each of the following:
a clear explanation of the issue(s);
the particular application(s) in which the issue(s) is/are occurring;
the particular webpage/URL where the issue(s) is/are occurring;
the steps needed to reproduce an occurrence of the issue(s); and
the hardware/device(s) on which the issue(s) have occurred.
We may change the Hosting Support Channel from time to time, with prior written notice to you. You acknowledge that we are your only point of contact for hosting issues, and agree that you will not contact the Hosting Provider directly for hosting issues.
Upon receipt of a hosting support request, we will evaluate such request pursuant to the criteria set forth below to determine whether your priority designation is correct. If the priority designation is incorrect, we will promptly notify you of the correct priority level.
Emergency: emergency situations where your application or site is not accessible. Initial response time = 1 business hour from submission during business hours or 2 hours outside of business hours.
Normal Priority: minor business impact, e.g., nonessential features not functioning. Initial response time = 6 business hours from submission during business hours or 12 hours outside of business hours.
In order for us to effectively perform the Services, you must have a designated representative with knowledge of the applicable support issue reasonably available to us during our business hours, who shall have the full authority to act on your behalf (the “Point-of-Contact”). Any delay by the Point-of-Contact (or otherwise on your behalf) is likely to negatively impact our ability to provide the Services in a timely fashion.
All of our content, materials, and data are our intellectual property (“Company Intellectual Property”), and no rights to our Company Intellectual Property are conveyed hereby, except for the limited, non-assignable and non-sub-licensable right to utilize our stuff in connection with our Services.
Your content, materials and data (“Customer Intellectual Property”) belongs to you; provided that you hereby grant to us an unlimited, sub-licensable right and license to utilize, in all lawful manner, Customer Intellectual Property in connection with providing the Services (and any other services), including the right to transfer Customer Intellectual Property to the Hosting Provider.
The Hosting Provider’s content, materials and data belong exclusively to the Hosting Provider, and no rights are granted to it hereby.
Acceptable Use Policy
Your use of the Services is subject to the terms and conditions of these Terms and to the Hosting Provider’s terms and/or acceptable use policy. Your use of the Services may only be for lawful purposes, and you shall at all times comply with applicable laws and regulations. Transmission of any material in violation of any law or regulation is strictly prohibited. Use of our Services for any purpose other than as intended is prohibited.
YOU SPECIFICALLY AGREE NOT TO TAMPER WITH, MAKE DERIVATIVE WORKS OF, REVERSE COMPILE, REVERSE ENGINEER AND/OR DISASSEMBLE ANY OF OUR SOFTWARE, FILES OR ANY OTHER OF COMPANY INTELLECTUAL PROPERTY.
You shall not engage in any of the following activities or practices (collectively, the “use policies”):
posting, transmission, re-transmission, or storing materials on or through any of our products or services, if in our sole judgment, such posting, transmission, re-transmission or storage is (i) in violation of any local, state, federal, or non United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations), (ii) threatening or abusive; (iii) obscene; (iv) indecent; or (v) disparaging or defamatory;
installation or distribution of software products or content that is not appropriately licensed;
resale of our products or services without our express prior written consent;
actions that restrict or inhibit anyone in the use or enjoyment of our products or services;
introduction of malicious programs into our networks or servers;
causing or attempting to cause security breaches or disruptions of Internet communications;
executing any form of network monitoring that will intercept data;
circumventing user authentication or security of any host, network or account;
interfering with our Services to others;
furnishing false or incorrect data to us;
sending unsolicited messages to individuals, other than as allowed by applicable law;
harassment, whether through language, frequency, or size of messages; or
exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions.
Your Customer/User Privacy
You acknowledge and agree that the Hosting Provider (and not us) owns and controls the hosting environment and all related software and materials, and that we are not responsible for any action or inaction by or on behalf of the Hosting Provider, including but not limited to systems failures, data loss, security breach, interruption, delays or other actions that might effect or prevent us from performing the Services. You agree to cooperate with us and to comply with the applicable Hosting Provider terms and conditions, rules, and guidelines. You understand that such terms and conditions constitute an agreement between you and the Hosting Provider, where applicable.
You acknowledge and agree that we may need to perform system maintenance from time to time, which could result in a temporary interruption in the Services provided hereunder. We will use commercially reasonable efforts to notify you of any planned maintenance activities at least ten (10) days in advance of such maintenance. Any delays or interruptions caused by such maintenance will not constitute a lack of performance or a breach of by us.
Unscheduled Downtime or Outages
While we cannot guarantee that there will not be unscheduled downtime or outages, we will provide a credit in the case of unscheduled downtime or outages caused by us and not the Hosting Provider, you or a third party, in accordance with the following schedule:
48 Hours or Longer: Credit equal to 50% of the service fee for the month in which outage or downtime occurs.
More Than 24 Hours But Less Than 48 Hours: Credit equal to 25% of the service fee for the month in which the outage or downtime occurs.
You understand and agree that such credits are reasonable compensation for any unscheduled downtime or outages, and acknowledge that limiting our liability in the case of such occurrences is a material provision of these terms.
ALL OF OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM, TO THE FULLEST EXTENT OF APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ERROR-FREE OPERATION, AND CONTINUOUS OPERATION. WE DO NOT GUARANTEE THAT THERE WILL NOT BE UNFORESEEN OR UNEXPECTED OUTAGES OR DOWNTIME.
Limitation of Liability
WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, NOR FOR ANY LOSS OF SAVINGS, DATA OR PROFIT. OUR MAXIMUM LIABILITY IN ALL CIRCUMSTANCES FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND YOUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT RECEIVED BY US FROM YOU FOR THE SERVICES PROVIDED HEREUNDER WITHIN THE SIX MONTHS PRECEDING THE CLAIM(S) OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS. YOU UNDERSTAND THAT THIS LIMITATION OF LIABILITY IS A MATERIAL AND REASONABLE TERM HEREOF, WITHOUT WHICH WE WOULD NOT HAVE OFFERED OR BE ABLE TO PROVIDE THE SERVICES TO YOU. THIS LIMITATION OF LIABILITY APPLIES TO OUR “AFFILIATES,” AS DEFINED HEREIN.
You agree to indemnify, defend and hold Company, its subsidiaries and affiliates and the shareholders, officers, agents, employees, successors and assigns and authorized representatives harmless from and against any claims, suits, actions, liabilities, demands, damages, judgments, liens, obligations, and proceedings (a “indemnifiable claim”) arising from or related to (a) your non-compliance with or breach of any of these terms, or any other action or inaction by you or anyone acting on your behalf; or (b) any third party indemnifiable claim of infringement or misappropriation of any intellectual property (including patent, copyright, trademark and trade secret), privacy, publicity or reputation (including libel, slander or defamation) rights.
Both Company and Customer recognize and acknowledge the confidential relationship that will exist between the Parties with respect to the sensitivity and confidentiality of business operations and procedures, company private data and/or systems, proprietary items, trade secrets, inventions, and any and all other similar or related documentation or information (hereinafter referred to as “Confidential Information”). The Parties agree that any such business, technical, proprietary, competitively sensitive and/or confidential information received by one Party from the other shall be governed by the following terms and conditions.
a. The Parties agree that, during the term of this Agreement and after its expiration or any termination as herein provided, and except as specifically required in the fulfillment of this Agreement, by law or as consented to in writing by the Parties, each Party, its employees and associates, shall not (and shall not permit others to) use, disclose or copy any such Confidential Information.
b. The Party receiving confidential information from the other shall not disclose, in whole or in part, any such confidential and proprietary information to any third party without the written consent of the transmitting party, except to the extent that the receiving Party is compelled by any law or legal requirement to disclose any of such information, in which case the disclosing Party will first notify and consult with the other Party concerning the disclosure to the extent reasonably feasible. The Parties shall take appropriate action to provide for the safe keeping of confidential and proprietary information and shall exercise at least the same degree of care as it normally exercises to preserve its own highly proprietary data and information.
We reserve the right to terminate any or all of the Services upon thirty (30) days written notice to the email address you have provided to us, or immediately if you breach any provision of these terms, including nonpayment of any fees due.
The Parties shall act as an independent contractor and not as an agent of the other in contracting for and providing the services under the applicable Work Order. Each Party shall maintain complete control over its employees and all of its suppliers and subcontractors of any tier.
Customer may not assign this Agreement, or any rights, obligations (including delegation) or benefits herein, without the prior written consent of the Company, which shall not be unreasonably withheld. Company may assign this Agreement. Any assignment in contravention of this section shall be void. These Terms shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns.
All notices, changes and amendments permitted or required to be made hereunder shall be sent by e-mail, facsimile, registered or certified mail, with a copy by ordinary mail. All such notices shall be directed to the address and to the individual noted on the applicable Work Order, provided that either Party may from time to time change the address to which notice shall be sent, by giving written notice of such changes to the other Party.
Jurisdiction and Venue
These Terms are governed by and construed in accordance with the laws of the State of Florida. Each party consents to the exclusive jurisdiction and venue in the state and federal courts of the County of St. Johns, Florida. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The prevailing party in any action to enforce or interpret this Agreement shall be entitled to its reasonable attorney’s fees and costs. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these Terms shall continue in full force and effect.
These terms represent the entire agreement between you and us with respect to the subject matter hereof, and supersede any and all prior or contemporaneous understandings, representations and agreements with respect to the same. These Terms also apply to our shareholders, officers, directors, employees, successors, assigns, agents, attorneys, insurers, agents and contractors, collectively referred to herein as our “affiliates”. There are no representations, warranties, collateral agreements or condition affecting these terms except as expressed herein. These terms may be modified from time to time. In the event that any provision of these terms is held to be invalid or unenforceable, in whole or in part, by a court of competent jurisdiction, such invalid or unenforceable portion or provision shall be modified to the extent necessary to render it enforceable, or, if not capable of such modification, severed herefrom, and all other provisions will continue to be valid and enforceable. No failure or delay to exercise any right or remedy herein shall constitute a waiver of such right or remedy. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
Last Modified: 8/20/2019