TERMS OF SERVICES
All services provided by Design Extensions (“Design Extensions”) may be used for lawful purposes only. Transmission, storage or presentation of any information, data or material in violation of any United States federal, state or city law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless Design Extensions from any claims resulting from the use of service which damages the subscriber or any other party.
Prohibited are sites that promote any illegal activity or present content that may be damaging to Design Extensions’ servers, or any other server on the Internet. Links to such materials are also prohibited.
Examples of unacceptable content or links:
hacker programs or archives
NOTICE: IF YOUR ACCOUNT IS FOUND TO CONTAIN ILLEGAL ACTIVITY, ILLEGAL MP3 FILES, PIRATED SOFTWARE, HACKER PROGRAMS, WAREZ PROGRAMS, OR ANY OTHER ILLEGAL FILES, YOUR ACCOUNT WILL BE TERMINATED IMMEDIATELY, WITHOUT NOTICE, AND A $50.00 CANCELLATION FEE WILL APPLY. ADDITIONALLY, Design Extensions WILL NOTIFY THE PROPER AUTHORITIES OF YOUR ACTIONS.
All account plans come with a predetermined amount of traffic allowance. We monitor all accounts and bill $1.00 for each gig of traffic exceeded. This amount is not prorated, meaning that 1 mb – 1 gig will be treated and billed as the same.
We currently do not allow IRC or IRC bots to be operated on our servers.
Any attempt to undermine or cause harm to a server or customer of Design Extensions is strictly prohibited. As our customer you are responsible for all your accounts. Should you violate the Terms of Services outlined within, your account will be cancelled without chance of refund.
Refusal of Service
We reserve the right to refuse, cancel or suspend service, at our sole discretion.
All sub-networks, distributive hosting sites and dedicated servers of Design Extensions must adhere to the above policies, with the exception of system resources in respect to dedicated servers.
By the Account Activation Date of each month, Design Extensions shall either:
(1) debit the client’s credit card (when such information has been provided by the client); or
(2) deliver, by e-mail or regular mail, an invoice in accordance with the applicable Service Fees for services rendered for the current month. When an invoice is delivered to the client, payment shall be remitted to Design Extensions by no later than the specified payment due date. Design Extensions shall be entitled to immediately terminate this agreement for client’s failure to make timely payments. You will be provided with an invoice on a monthly basis. All credit cards are billed automatically on a monthly basis. It is the client’s responsibility to ensure that they have sufficient credit to cover this transaction. In the event that there is insufficient credit, we will send an e-mail notification, at which point we will need to be provided with another credit card account number within 24 hours. If we do not receive a response within 24 hours, the account, and all accounts under that account plan, will be suspended.
Certain services carry a setup fee charged by Design Extensions to client, which must be paid by client in order to have use of said services. If client terminates this agreement, client shall be responsible for any and all outstanding fees owed to Design Extensions and agrees to pay any and all fees incurred by client. Because the services are provided on a monthly basis, the client will be responsible for service fees incurred each month, regardless of when client provides notice of termination. Thus, for example, if the client provides notice of termination on the 15th day of a particular month, the client will be responsible for service fees for the entire month, and such fees will not be pro-rated or refunded.
Money back guarantee & refund policy
We do not generally refund cancelled contracts. For example, if your contract is quarterly and you request a refund after two months, no refunds will be admitted. No refunds are issued for setup charges, add-on charges, domain-registrations, add-on purchases, SSL certificates or overage charges. In case of AUP violations, any and all refunds are forfeit.
Any account deactivated due to non-payment will require a reactivation fee of $20.00 prior to reactivation.
We DO NOT refund partial monthly fees to accounts. We require 30 days notice for a cancellation.
Refusal of Service
We reserve the right to refuse, cancel or suspend service, at our sole discretion.
Limitation of Liability
Design Extensions shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from Design Extensions ‘ servers going off-line or being unavailable for any reason whatsoever. Furthermore, Design Extensions shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any web site from one of Design Extensions ‘ servers. All damages shall be limited to the immediate termination of service.
Violations of these Acceptable Use Policies should be referred to email@example.com. All complaints will be investigated promptly. Failure to follow any term or condition will be grounds for immediate account deactivation.
Design Extensions cannot be held liable for system down time, crashes or data loss. We cannot be held liable for any predicated estimate of profits which a client would have gained if their site was functioning. Certain services provided by Design Extensions are resold. Thus, certain equipment, routing, software and programming used by Design Extensions are not directly owned or written by Design Extensions. Moreover, Design Extensions holds no responsibility for the use of our clients’ accounts. Failure to comply with any terms or conditions will result in the automatic deactivation of the account in question. We reserve the right to remove any account, without advance notice for any reason without restitution, as Design Extensions sees fit.
By activating your account with Design Extensions, you agree to the above policies and disclaimer. Upon requesting activation of an account, you are required to accept these policies, guidelines and disclaimer, and a copy of your acceptance is forwarded along with your activation request to be maintained with your account information.
NOTICE: If you sign up for an account and fail to comply with these terms, no refunds will be given. We will, however, advise you by e-mail or phone prior to taking any action to provide you with an opportunity to correct the problem.
Server Uptime Guarantee
Design Extensions guarantees 98% service (http, ftp, pop, imap, smtp) uptime on all hosting plans. Should we fail to deliver this for any given calendar month, your account will be refunded a pro-rated amount for the duration of excessive downtime.
Design Extensions reserves the right to amend any or all of the above policies, guidelines and disclaimer without notification. We also retain the right to increase any pricing and make changes to our account plans without notification.
Collection of your Personal Information
We do not collect any personal information about you unless you voluntarily provide it to us. However, you may be required to provide certain personal information to us when you elect to use certain products or services available on the Site. These may include: (a) registering for an account on our Site; (b) entering a sweepstakes or contest sponsored by us or one of our partners; (c) signing up for special offers from selected third parties; (d) sending us an email message; (e) submitting your credit card or other payment information when ordering and purchasing products and services on our Site. To wit, we will use your information for, but not limited to, communicating with you in relation to services and/or products you have requested from us. We also may gather additional personal or non-personal information in the future.
Sharing Information with Third Parties
Design Extensions does not sell, rent or lease its customer lists to third parties.
Design Extensions may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identifiable information (e-mail, name, address, telephone number) is not transferred to the third party. Design Extensions may share data with trusted partners to help perform statistical analysis, send you email or postal mail, provide customer support, or arrange for deliveries. All such third parties are prohibited from using your personal information except to provide these services to Design Extensions, and they are required to maintain the confidentiality of your information.
Design Extensions may disclose your personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Design Extensions or the site; (b) protect and defend the rights or property of Design Extensions; and/or (c) act under exigent circumstances to protect the personal safety of users of Design Extensions, or the public.
Tracking User Behavior
Design Extensions may keep track of the websites and pages our users visit within Design Extensions, in order to determine what Design Extensions services are the most popular. This data is used to deliver customized content and advertising within Design Extensions to customers whose behavior indicates that they are interested in a particular subject area.
Automatically Collected Information
Information about your computer hardware and software may be automatically collected by Design Extensions. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of the Design Extensions website.
This website contains links to other sites. Please be aware that we are not responsible for the content or privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of any other site that collects personally identifiable information.
Security of your Personal Information
Design Extensions secures your personal information from unauthorized access, use, or disclosure. Design Extensions uses the following methods for this purpose:
When personal information (such as a credit card number) is transmitted to other websites, it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.
We strive to take appropriate security measures to protect against unauthorized access to or alteration of your personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, you acknowledge that: (a) there are security and privacy limitations inherent to the Internet which are beyond our control; and (b) security, integrity, and privacy of any and all information and data exchanged between you and us through this Site cannot be guaranteed.
Children Under Thirteen
Design Extensions does not knowingly collect personally identifiable information from children under the age of thirteen. If you are under the age of thirteen, you must ask your parent or guardian for permission to use this website.
From time to time, Design Extensions may contact you via email for the purpose of providing announcements, promotional offers, alerts, confirmations, surveys, and/or other general communication. In order to improve our Services, we may receive a notification when you open an email from Design Extensions or click on a link therein.
If you would like to stop receiving marketing or promotional communications via email from Design Extensions, you may opt out of such communications by Clicking the Unsubscribe Link in the Email.
Changes to this Statement
Design Extensions welcomes your questions or comments regarding this Statement of Privacy. If you believe that Design Extensions has not adhered to this Statement, please contact Design Extensions at:
701 Market Street, Unit 101
Saint Augustine, Florida 32095
ACCEPTABLE USE POLICY
As a provider of web site hosting and other Internet-related services, Design Extensions offers its customer (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. Design Extensions respects that the Internet provides a forum for free and open discussion and dissemination of information. However, when there are competing interests at issue, Design Extensions reserves the right to take certain preventive or corrective actions. In order to protect these competing interests, Design Extensions 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 using Design Extensions’ services. This AUP will be revised from time to time.
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 it, 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 Design Extensions cannot monitor, verify, warrant or vouch for the accuracy and quality of the information they 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 may be sexually explicit or otherwise offensive. Because Design Extensions cannot monitor or censor the Internet, and will not attempt to do so, Design Extensions cannot accept any responsibility for injury to its subscribers resulting from inaccurate, unsuitable, offensive or illegal Internet communications.
When subscribers disseminate information from the Internet, they must keep in mind that Design Extensions 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 created is carried over Design Extensions’ network and may reach a large number of people, including both subscribers and non-subscribers of Design Extensions, subscribers’ postings to the Internet may affect other subscribers and may affect Design Extensions’ goodwill, business, reputation or operations. For these reasons, subscribers violate Design Extensions policy and the Service Agreement when they, their customers, affiliates or subsidiaries engage in the following prohibited activities:
Sending unsolicited bulk and/or commercial information over the Internet. It is not only harmful because of its negative impact on consumer attitudes toward Design Extensions, but also because it can overload Design Extensions’ network and disrupt service to Design Extensions’ subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, Design Extensions will investigate and shutdown the account that is SPAMing. A $250 charge for violating this policy will be charged to the person initiating the SPAM. Furthermore Design Extensions reserves the right to prosecute for this violation. A $1.00 charge will be assessed PER EMAIL sent should Design Extensions choose to pursue and prosecute.
Audio/Video Streaming is not hosting friendly. As such, Design Extensions does not allow any streaming of audio or video content. Offending accounts will be suspended without noticed or terminated.
Design Extensions does not allow adult content and will suspend/terminate any offending account.
Large File Policy:
Design Extensions is not for file hosting and distribution – as such, customers may not host any files larger than 50MB in size that are observed to be available for the sole purpose of download. Such files include but are not limited to .ISO, audio/video files, .EXE files. If you are unsure whether your file is against this policy, please e-mail firstname.lastname@example.org.
Obscene Speech or Materials:
Using Design Extensions’ network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is prohibited. Design Extensions is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through its network.
Defamatory or Abusive Language:
Using Design Extensions’ network as a means to transmit or post negative, 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 may 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.
Facilitation 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.
Design Extensions 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, but not limited to, advertising, transmitting or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards and pirating software.
Engaging in activities, whether lawful or unlawful, that Design Extensions determines to be harmful to its subscribers, operations, reputation, goodwill or customer relations.
As we have pointed out, the responsibility for avoiding harmful activities just described rests primarily with the subscriber. Design Extensions will not, as an ordinary practice, monitor the communications of its subscribers to ensure that the comply with Design Extensions’ policy or applicable law. However, when Design Extensions becomes aware of harmful activities, it may take any action to stop the harmful activity, including, but not limited to, removal of information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or any other action deemed appropriate by Design Extensions.
Design Extensions is also aware that many of its subscribers are themselves providers of Internet services, and that information reaching Design Extensions’ facilities from those subscribers may have originated from a customer of the subscriber or from another third party. Design Extensions does not require its subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of its subscribers. Design Extensions reserves the right to directly take action against a customer of its subscribers. Also, Design Extensions may take action against the Design Extensions’ subscriber because of activities of a customer of the subscriber, even though the action may affect other customers of the subscriber. Similarly, Design Extensions anticipates that subscribers who offer Internet services will cooperate with Design Extensions in any corrective or preventive action that Design Extensions deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of Design Extensions policy.
Design Extensions will not intentionally monitor private electronic mail messages sent or receive by its subscribers, unless required to do so by law, governmental authority or when public safety is at stake. Design Extensions may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, Design Extensions may disclose information, including, but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or governmental request. Design Extensions assumes not obligation to inform the subscriber that subscriber information has been provided and, in some cases, may be prohibited by law from giving such notice. Finally, Design Extensions may disclose subscriber information or information transmitted over its network where necessary to protect Design Extensions and others from harm, or where such disclosure is necessary to the proper operation of the system. However, Design Extensions will never sell information to other services or outside companies.
Design Extensions expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of online communications. A subscriber’s failure to comply with those laws will violate Design Extensions policy. Finally, Design Extensions wishes to emphasize that, in signing the Service Agreement, subscribers indemnify Design Extensions for any violation of the Service Agreement, law or Design Extensions policy resulting in loss to Design Extensions or the bringing of any claim against Design Extensions by any third party. This means that, if Design Extensions is sued because of a subscriber’s or customer of a subscriber’s activity, the subscriber will be responsible for payment of any damages awarded against Design Extensions, plus costs and reasonable attorney’s fees.
We hope this AUP is helpful in clarifying the obligations of Internet users, including Design Extensions and its subscribers, as responsible members of the Internet. Any complaints about a subscriber’s violation of this AUP should be sent to email@example.com.
GENERAL CLIENT AGREEMENT
ACCOUNT MANAGER. Client will be assigned an account manager. This account manager will act as the primary point of contact with Design Extensions personnel and will respond to all communications within 24 hours on workdays, unless otherwise notified (and subject to reasonable exceptions).
ONE POINT PERSON. Design Extensions will require one point of contact during the Contract for clarifying requirements for design, key features, usability and maintenance issues. Design Extensions requires this person be available to answer questions arising from the project within 48 hours on workdays (subject to reasonable exceptions), and to have authority to make design and related decisions on the system.
TIMING & APPROVAL. We want to keep the project moving to avoid unnecessary delays and unexpected hours getting back up to speed. You play a pivotal role in making this happen with prompt approvals and input. We anticipate feedback and approvals to be provided via email within two working days in order to help stay on schedule. Delays beyond that are your responsibility and your monthly retainer payments will still be required. We will send blog copy to you one week in advance of publication, including information about the cutoff date and time for incorporating your feedback. We request that you review the copy and let us know of any changes or revisions within that timeframe; if we don’t hear back from you, we will publish the blog as scheduled.
EDITS & REVISIONS. Your project fee includes one standard revision and two minor revisions, unless the revision is based on a change in the assignment made after copy is submitted (which requires a Change Order). Turnaround time for minor revisions is 2-3 business days. Turnaround time for major revisions is 5-7 business days If additional revisions are needed for either copy or concepts, an additional fee/points may apply.
COPY LEGALITY. Every effort will be made to make your copy comply with the law. However, it is your responsibility to submit all copy for legal review if needed. You are also responsible for final proofreading of all the copy. You are absolutely indemnifying Design Extensions from any and all losses, claims, damages, and liabilities which may arise from the use of the work, including but not limited to any and all instances of inclusion or omission.
TRANSFER OF OWNERSHIP. You own all the original work created for you by Design Extensions after the first 12 months of service if all payments are made. We reserve the right to reuse portions of code from projects that may be beneficial to other projects.
CONTACT BETWEEN SCHEDULED MEETINGS. We typically work from 9AM-5PM, Monday-Friday. Our hosting team is available for urgent issues on the weekend (such as a site being down or hacked) but the rest of the team is not. We make every effort to return e-mails and phone calls within 24 business hours.
SERVICE UPTIME. Our website and hosting services have an excellent record of incredible uptime (over 99%), however, we do not make any guarantee of website uptime and will not refund any fees for outages that may result from maintenance, bugs, or other issues. We will, however, work as quickly as possible with our team and partners to get your site back online as quickly as humanly possible.
PAYMENT TERMS. Net 10. All ongoing fees must be paid via recurring credit card or bank authorization that automatically happens each month. All fees are nonrefundable. Should a payment be past due for more than 60 days, the client shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if the client fails to pay for the Services when due, Design Extensions has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies.
CONFIDENTIALITY. Design Extensions, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Design Extensions, or divulge, disclose, or communicate in any manner, any information that is proprietary to the client. Design Extensions and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract. Any oral or written waiver by the client of these confidentiality obligations which allows Design Extensions to disclose the client’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
DISPUTE RESOLUTION. The parties will attempt to resolve any dispute out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation does not successfully resolve the dispute, the parties may proceed to seek an alternative form of resolution in accordance with any other rights and remedies afforded to them by law.
ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of Florida and St. Johns County.
NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
ATTORNEY’S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.
CONSTRUCTION AND INTERPRETATION. 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.
CANCELATION. In the event of the project being cancelled, you own all of the original work created for you by Design Extensions that you’ve paid for (assuming you’ve been with us at least 12 months). If you decide to start a project back up after canceling a new setup fee will be required. Design Extensions also reserves the right to cancel a project for any reason and will refund any unused fees from the current month if that happens. All recurring agreements requires a minimum of 12 months payment even if the contract is canceled early by the client. No refunds are granted for any reason. After the initial 12 months are paid in full, all created and paid for work belongs to the client.
HOSTING TERMS & CONDITIONS
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:
- 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;
- 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
- 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 twenty percent (20%) 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 = 2 business hours from submission during business hours or 4 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 business 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.
- 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.
- 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: 8/31/2017