R-DESIGN GROUP'S TERMS OF SERVICE
- R-DesignGroup Hosting does
not allow pornographic material.
- R-DesignGroup Hosting does
not allow unsolicited email and requires opt-in list managers to include at
least one single action method of unsubscribing in each email. We reserve
the right to limit incoming or outgoing email at any time.
- R-DesignGroup Hosting
reserves the right to terminate your account at any time without a refund.
Reasons for termination include, but are not limited to:
- Abuse of the
machines - either intentional or due to improper coding
- Committing or
Promoting any type of illegal activity including fraud, mailbombing,
denial of service attacks, storing and/or housing and/or linking to
illegal content, including but not limited to, "warez",
- The Services to
traffic in illegal drugs, gambling and/or obscene materials.
- The Services to
misappropriate or infringe the patents, copyrights, trademarks or other
intellectual property rights of any third party.
R-DesignGroup Hosting reserves the right to terminate your account if at any
time your site has pornography and/or nudity of any kind, including but
not limited to, adult pornography, Anime, child pornography, "adult
content" and/or the written word of a sexual nature.
- Use of ad-servers,
attempts to circumvent quota system owned by 'nobody', certain
podcasting sites, use of torrent software, proxies, excessive resource
usage or 'core dumping'.
- Attempts to
circumvent any of our security policies, procedures or systems.
Business Hosting Pro Plan SLA
After your purchase of a Business Class Pro account, you may contact Customer
Support to have your physical uptime checked no more than once within a 30-day
period. If your Business Class Pro Server has a physical downtime that is not
within the 99.9% uptime you may receive one month of credit on your account.
Approval of the credit is at the discretion of R-DesignGroup Hosting, dependent upon
the results of the check performed by R-DesignGroup Hosting Customer Support.
Third-party monitoring service reports may not be used for justification, due to
a variety of factors, including the monitor's network capacity and reliability.
The uptime of the server is defined as the reported uptime from the operating
system and the Apache Web Server which may differ from the uptime reported by
other individual services. If an approved downtime event is reported following a
check you request, you must request your credit within one (1) week of receiving
notification of such a report.
Scheduled downtime for server maintenance is not regarded as downtime for
purposes of relevance for this credit, nor is downtime caused by unavoidable
acts of God, nor by third-party digital or physical attacks on R-DesignGroup Hosting
servers and data centers, such as direct denial of service (DDoS) attacks, or
other forms of hacking. Interruptions in service caused by you from custom
scripting, coding or the installation of third-party applications are likewise
not eligible to be counted against downtime. R-DesignGroup Hosting reserves the right
to measure uptime on its own at any time.
To request a credit, please create a ticket with our support department or email support@R-DesignGrouphosting.com with
justification. Uptime guarantees only apply to Business Class Pro accounts.
Dedicated Servers are covered by a network guarantee in which the credit is
prorated for the amount of time the server is down and are not related to our
This User Agreement ("Agreement") is an agreement between R-DesignGroup HOSTING, INC.
("Company") and the party set forth in the related order form (“Customer” or
“You”) incorporated herein by reference (together with any subsequent order
forms submitted by Customer, the "Order Form"), and applies to the purchase of
all services ordered by Customer on the Order Form (collectively, the
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A
CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE
SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY
THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY
REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE
SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Acceptable Use Policy. Under this Agreement, Customer shall comply with
Company's then current Acceptable
Use Policy (“AUP”), as amended, modified or updated from time to time by
Company, which currently can be viewed under the Legal Details section of
this web site, and which is incorporated in this Agreement by reference.
Customer hereby acknowledges that it has reviewed the AUP and that the terms
of the AUP are incorporated herein by reference. In the event of any
inconsistencies between this Agreement and the AUP, the terms of the AUP
shall govern. Company does not intend to systematically monitor the content
that is submitted to, stored on or distributed or disseminated by Customer
via the Service (the "Customer Content"). Customer Content includes content
of Customer's customers and/or users of Customer's website. Accordingly,
under this Agreement, You will be responsible for Your customers' content
and activities on Your website. Notwithstanding anything to the contrary
contained in this Agreement, Company may immediately take corrective action,
including removal of all or a portion of the Customer Content, disconnection
or discontinuance of any and all Services, or termination of this Agreement
in the event of notice of possible violation by Customer of the AUP. In the
event Company takes corrective action due to a violation of the AUP, Company
shall not refund to Customer any fees paid in advance of such corrective
action. Customer hereby agrees that Company shall have no liability to
Customer or any of Customer's customers due to any corrective action that
Company may take (including, without limitation, disconnection of Services).
Term; Termination; Cancellation
- The initial term of
this Agreement shall be as set forth in the Order Form (the "Initial
Term"). The Initial Term shall begin upon commencement of the Services
to Customer. After the Initial Term, this Agreement shall automatically
AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO
AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE
TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR
CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The
Initial Term and all successive renewal periods shall be referred to,
collectively, as the "Term".
- This Agreement may
- by either party
by giving the other party thirty (30) days prior written notice
subject to a minimum $50.00 charge as an early cancellation fee
payable by Customer,
- by Company in
the event of nonpayment by Customer,
- by Company, at
any time, without notice, if, in Company's sole and absolute
discretion and/or judgment, Customer is in violation of any term or
condition of the this Agreement and related agreements, AUP, or
Customer's use of the Services disrupts or, in Company's sole and
absolute discretion and/or judgment, could disrupt, Company's
business operations and/or
- by Company as
- If You cancel this
Agreement, upon proper notice to Company, prior to the end of the
Initial Term or any Term thereafter,
- You shall be
obligated to pay all fees and charges accrued prior to the
effectiveness of such cancellation;
- Company may (but
is not obligated to) refund to You all pre-paid fees for basic
hosting services for the full months remaining after effectiveness
of cancellation (i.e., no partial month fees shall be refunded),
less any setup fees and any discount applied for prepayment,
provided that, You are not in breach of any terms and conditions of
this AUP, User Agreement, Spamming Policy or Domain Policy; and/or
- You shall be
obligated to pay one hundred percent (100%) of all charges for all
Services for each month remaining in the Term (other than basic
hosting fees as provided in (ii) above). Any cancellation request
shall be effective thirty (30) days after receipt by Company, unless
a later date is specified in such request.
- Company may
terminate this Agreement, without penalty,
- if the Services
are prohibited by applicable law, or become impractical or
unfeasible for any technical, legal or regulatory reason, by giving
Customer as much prior notice as reasonably practicable; or
- immediately, if
Company determines that Customer’s use of the Services, the Web site
or the Customer Content violates any Company term or condition,
including this AUP, User Agreement, Spamming Policy, or Domain
Policy. If Company cancels this Agreement prior to the end of the
Term for Your breach of this Agreement and related agreements,
including the AUP, User Agreement, Spamming Policy, or Domain Policy
or Customer's use of the Services disrupts our network, Company
shall not refund to You any fees paid in advance of such
cancellation and You shall be obligated to pay all fees and charges
accrued prior to the effectiveness of such cancellation; further,
You shall be obligated to pay 100% of all charges for all Services
for each month remaining in the Term and Company shall have the
right to charge You an administrative fee of a minimum of $50.00.
- Upon termination of
this Agreement for any cause or reason whatsoever, neither party shall
have any further rights or obligations under this Agreement, except as
expressly set forth herein. The provisions of Sections 2(e), 3, 4, 10,
11, 13, 15 and 16 of this Agreement shall survive the expiration or
termination of this Agreement for any cause or reason whatsoever, and,
notwithstanding the expiration or termination of this Agreement, the
parties shall each remain liable to the other for any indebtedness or
other liability theretofore arising under this Agreement. Termination of
this Agreement and retention of pre-paid fees and charges shall be in
addition to, and not be in lieu of, any other legal or equitable rights
or remedies to which Company may be entitled.
- Customer is solely
responsible for the quality, performance and all other aspects of the
Customer Content and the goods or services provided through the Customer
- Customer will
cooperate fully with Company in connection with Company’s performance of
the Services. Customer must provide any equipment or software that may
be necessary for Customer to use the Services. Delays in Customer’s
performance of its obligations under this Agreement will extend the time
for Company’s performance of its obligations that depend on Customer’s
performance on a day for day basis. Customer will notify Company of any
change in Customer’s mailing address, telephone, electronic mail or
other contact information.
- Customer assumes
full responsibility for providing end users with any required disclosure
or explanation of the various features of the Customer Web site and any
goods or services described therein, as well as any rules, terms or
conditions of use.
- Because the Services
permit Customer to electronically transmit or upload content directly to
the Customer Web site, Customer shall be fully responsible for uploading
all content to the Customer Web site and supplementing, modifying and
updating the Customer Web site, including all back-ups. Customer is also
responsible for ensuring that the Customer Content and all aspects of
the Customer Web site are compatible with the hardware and software used
by Company to provide the Services, as the same may be changed by
Company from time to time. Specifications for the hardware and software
used by Company to provide the Services will be available on Company’s
Web site. Customer shall periodically access Company’s Web site to
determine if Company has made any changes thereto. Company shall not be
responsible for any damages to the Customer Content, the Customer Web
site or other damages or any malfunctions or service interruptions
caused by any failure of the Customer Content or any aspect of the
Customer Web site to be compatible with the hardware and software used
by Company to provide the Services.
- Customer is solely
responsible for making back-up copies of the Customer Web site and
Customer’s Representations and
- Customer hereby
represents and warrants to Company, and agrees that during the Initial
Term and any Term thereafter Customer will ensure that:
- Customer is the
owner or valid licensee of the Customer Content and each element
thereof, and Customer has secured all necessary licenses, consents,
permissions, waivers and releases for the use of the Customer
Content and each element thereof, including without limitation, all
trademarks, logos, names and likenesses contained therein, without
any obligation by Company to pay any fees, residuals, guild payments
or other compensation of any kind to any Person;
- Customer’s use,
publication and display of the Customer Content will not infringe
any copyright, patent, trademark, trade secret or other proprietary
or intellectual property right of any person, or constitute a
defamation, invasion of privacy or violation of any right of
publicity or any other right of any person, including, without
limitation, any contractual, statutory or common law right or any
“moral right” or similar right however denominated;
- Customer will
comply with all applicable laws, rules and regulations regarding the
Customer Content and the Customer Web site and will use the Customer
Web site only for lawful purposes; and
- Customer has
used its best efforts to ensure that the Customer Content is and
will at all times remain free of all computer viruses, worms, Trojan
horses and other malicious code.
- Customer shall be
solely responsible for the development, operation and maintenance of
Customer's web site, online store and electronic commerce activities,
for all products and services offered by Customer or appearing online
and for all contents and materials appearing online or on Customer's
products, including, without limitation
- the accuracy and
appropriateness of the Customer Content and content and material
appearing in its store or on its products,
- ensuring that
the Customer Content and content and materials appearing in its
store or on its products do not violate or infringe upon the rights
of any person, and
- ensuring that
the Customer Content and the content and materials appearing in its
store or on its products are not defamatory or otherwise illegal.
Customer shall be solely responsible for accepting, processing and
filling customer orders and for handling customer inquiries or
complaints. Customer shall be solely responsible for the payment or
satisfaction of any and all taxes associated with its web site and
- Customer grants
Company the right to reproduce, copy, use and distribute all and any
portion of the Customer Content to the extent needed to provide and
operate the Services.
- In addition to
transactions entered into by Customer on Your behalf, Customer also
agrees to be bound by the terms of this Agreement for transactions
entered into on Customer’s behalf by anyone acting as Customer’s agent,
and transactions entered into by anyone who uses Customer’s account,
whether or not the transactions were on Customer’s behalf.
License to Company.
Customer hereby grants to Company a non-exclusive, royalty-free, worldwide
right and license during the Initial Term and any Term thereafter to do the
following to the extent necessary in the performance of Services under the
- digitize, convert,
install, upload, select, order, arrange, compile, combine, synchronize,
use, reproduce, store, process, retrieve, transmit, distribute, publish,
publicly display, publicly perform and hyperlink the Customer Content;
- make archival or
back-up copies of the Customer Content and the Customer Web site.
- Except for the
rights expressly granted above, Company is not acquiring any right,
title or interest in or to the Customer Content, all of which shall
remain solely with Customer.
- Company, in its sole
discretion, reserves the right (i) to deny, cancel, suspend, transfer or
alter, modify, correct, amend, change, program, or take any other
corrective action to protect the integrity and stability of the Services
(including altering, modifying, correcting, amending, changing,
programming, or taking any other corrective action regarding any
malicious code, software or related abusive activity, Customer Content
and/or web site(s)), and/or (ii) to comply with any applicable laws,
government rules, or requirements, requests of law enforcement, or to
avoid any liability, civil or criminal. Customer further agrees that
Company shall not be liable to Customer for any loss or damages that may
result from such conduct.
Billing and Payment.
- Customer will pay to
Company the service fees for the Services in the manner set forth in the
- Company may increase
the Service Fees (i) in the manner permitted in the service description
and (ii) at any time on or after expiration of the Initial Term.
- The Service Fees do
not include any applicable sales, use, revenue, excise or other taxes
imposed by any taxing authority with respect to the Services or any
software provided hereunder (excluding any tax on Company’s net income).
All such taxes will be added to Company’s invoices for the fees as
separate charges to be paid by Customer. All fees are fully earned when
due and non-refundable when paid.
- Unless otherwise
specified, all fees and related charges shall be due and payable within
thirty (30) days after the date of the invoice. If any invoice is not
paid within seven (7) days after the date of the invoice, Company may
charge Customer a late fee of $15.00 for; in addition any amounts
payable to Company not paid when due will bear interest at the rate of
one and one half percent (1.5%) per month or the maximum rate permitted
by applicable law, whichever is less.
- If Company collects
any payment due at law or through an attorney at law or under advice
therefrom or through a collection agency, or if Company prevails in any
action to which the Customer and Company are parties, Customer will pay
all costs of collection, arbitration and litigation, including, without
limitation, all court costs and Company’s reasonable attorneys’ fees. I
- If any check is
returned for insufficient funds Company may impose a minimum processing
charge of $25.00.
- In the event that
any amount due to Company remains unpaid seven (7) days after such
payment is due, Company, in its sole discretion, may immediately
terminate this Agreement, and/or withhold or suspend Services.
- There may be a
minimum $50.00 charge to reinstate accounts that have been suspended or
- Wire transfers will
be assessed a minimum $35.00 charge.
- There may be a
minimum $35.00 charge to for all credit card chargebacks.
acknowledges and agrees that Company may pre-charge Customer's fees for
the Services to its credit card supplied by Customer during registration
for the Initial Term.
YOU ACKNOWLEDGE, AGREE AND AUTHORIZE
COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR
SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED
OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
Company as Reseller or Licensor.
Company is acting only as a reseller or licensor of the hardware, software
and equipment used in connection with the products and/or Services that were
or are manufactured or provided by a third party ("Non-Company Product").
Company shall not be responsible for any changes in the Services that cause
the Non-Company Product to become obsolete, require modification or
alteration, or otherwise affect the performance of the Services. Any
malfunction or manufacturer's defects of Non-Company Product either sold,
licensed or provided by Company to Customer or purchased directly by
Customer used in connection with the Services will not be deemed a breach of
Company's obligations under this Agreement. Any rights or remedies Customer
may have regarding the ownership, licensing, performance or compliance of
Non-Company Product are limited to those rights extended to Customer by the
manufacturer of such Non-Company Product. Customer is entitled to use any
Non-Company Product supplied by Company only in connection with Customer's
permitted use of the Services. Customer shall use its best efforts to
protect and keep confidential all intellectual property provided by Company
to Customer through any Non-Company Product and shall make no attempt to
copy, alter, reverse engineer, or tamper with such intellectual property or
to use it other than in connection with the Services. Customer shall not
resell, transfer, export or re-export any Non-Company Product, or any
technical data derived therefrom, in violation of any applicable United
States or foreign law.
Internet Protocol (IP) Address
Ownership. If Company assigns Customer an Internet Protocol (“IP”)
address for Customer's use, the right to use that IP address shall belong
only to Company, and Customer shall have no right to use that IP address
except as permitted by Company in its sole and absolute discretion in
connection with the Services, during the term of this Agreement. Company
shall maintain and control ownership of all Internet Protocol numbers and
addresses that may be assigned to Customer by Company, and Company reserves
the right to change or remove any and all such Internet Protocol numbers and
addresses, in its sole and absolute discretion.
Caching. Customer expressly
- grants to Company a
license to cache the entirety of the Customer Content and Customer's web
site, including content supplied by third parties, hosted by Company
under this Agreement and
- agrees that such
caching is not an infringement of any of Customer's intellectual
property rights or any third party's intellectual property rights.
CPU Usage. Customer agrees
that Customer shall not use excessive amounts of CPU processing on any of
Company's servers. The maximum number of files is 50,000 per account. Any
violation of this policy may result in corrective action by Company,
including assessment of additional charges, disconnection or discontinuance
of any and all Services, or termination of this Agreement, which actions may
be taken in Company's sole and absolute discretion. If Company takes any
corrective action under this section, Customer shall not be entitled to a
refund of any fees paid in advance prior to such action.
Bandwidth and Disk Usage.
Company shall provide Customer with a large volume of bandwidth, disk space
and other resources, such as email and/or file-transfer-protocol ("FTP")
accounts. The Services are intended for normal use only. Any activity that
results in excessive usage inconsistent with normal usage patterns is
strictly prohibited. Customer agrees that such bandwidth and disk usage
shall not exceed the amounts set by Company for the Services (the "Agreed
Usage"). These allotments are optimized and dedicated towards serving the
Content and Customer's electronic mail services related solely to Customer's
web hosting account(s) with Company. Customer shall not use any bandwidth
and/or disk usage for materials other than the Customer’s Web site, Customer
Content and/or Customer's electronic mail services. For example, Customer
may not use bandwidth or disk usage as offsite storage area for electronic
files or as a provisioning service for third party electronic mail or FTP
hosts. Company will monitor Customer's bandwidth and disk usage. Company, in
its sole discretion, shall have the right to take any corrective action if
Customer's bandwidth or disk usage exceeds the Agreed Usage or other
improper storage or usage. Such corrective action may include the assessment
of additional charges, disconnection or discontinuance of any and all
Services, removal or deletion of Customer’s Web site, Customer Content,
Customer's electronic mail services and/or other materials or termination of
this Agreement, which actions may be taken in Company's sole and absolute
discretion. If Company takes any such corrective action under this section,
Customer shall not be entitled to a refund or credit of any fees paid prior
to such action. Customer will comply with all applicable laws, rules and
regulations regarding Customer’s Web site, Customer Content and/or
Customer's electronic mail services and will each, including bandwidth, disk
space and other resources only for lawful purposes. Customer may not
utilize: the Services to copy material from third parties (including text,
graphics, music, videos or other copyrightable material) without proper
authorization; the Services to misappropriate or infringe the patents,
copyrights, trademarks or other intellectual property rights of any third
party; the Services to traffic in illegal drugs, illegal gambling, obscene
materials or other any products or services that are prohibited under
applicable law; the Services to export encryption software to points outside
the United States in violation of applicable export control laws; the
Services to forge or misrepresent message headers, whether in whole or in
part, to mask the originator of the message. If Company learns or discovers
that Customer is violating any law related to Customer’s Web site, Customer
Content and/or Customer's electronic mail services, use of bandwidth, disk
usage or Agreed Usage, Company maybe obligated to inform the necessary law
enforcement and/or any related agency(ies) of such conduct and may provide
such agency(ies) with information related to Customer, Customer’s Web site,
Customer Content and/or Customer's electronic mail.
Parked Domain Services. In
addition to the applicable terms and conditions contained herein:
- If Customer signs up
to register and park a domain name with Company, Customer agrees to pay
Company the annual fee a set forth on our web site (the “Parked Page
Services”). Customer’s annual billing date will be determined based on
the month Customer establishes the Parked Page Services with Company.
Payments are non-refundable. If for any reason Company is unable to
charge Customer’s payment method for the full amount owed Company for
the service provided, or if Company is charged a penalty for any fee it
previously charged to Your payment method, Customer agrees that Company
may pursue all available remedies in order to obtain payment. Customer
agrees that among the remedies Company may pursue in order to effect
payment, shall include but will not be limited to, immediate
cancellation without notice to Customer of Customer’s service. Company
reserves the right to charge a reasonable service fee for administrative
tasks outside the scope of its regular services. These include, but are
not limited to, customer service issues that cannot be handled over
email but require personal service, and disputes that require legal
services. These charges will be billed to the payment method we have on
file for Customer.
- Customer agrees to
be responsible for notifying Company should Customer desire to terminate
use of any of the Parked Page Services, including, but not limited to,
those purchased. Notification of Customer’s intent to terminate must be
provided to Company no earlier than thirty (30) days prior to Customer’s
billing date but no later than ten (10) days prior to the billing date.
In the absence of notification from Customer, Company will automatically
continue the Parked Page Services indefinitely and will charge
Customer’s payment method that is on file with Company, at Company's
then current rates. It is Customer’s responsibility to keep their
payment method information current, which includes the expiration date
if using a credit card. In the event Customer terminates the Parked Page
Services, moving their web site off of the Company hosting servers is
Customer’s responsibility. Company will not transfer or FTP such web
site to another provider. Any change by Customer of their name-server is
not deemed cancellation of the Parked Page Services.
- Company will provide
Customer with the Parked Page Services as long as Customer abides by the
terms and conditions set forth herein and in each of Company's policies
- By using any of the
Parked Pages Services, Customer agrees that Company may point the domain
name or DNS to one of Company's or Company's affiliates web pages, and
that they may place advertising on Customer’s web page and that Company
specifically reserves this right. Customer shall have no right to any
compensation and shall not be entitled and shall have no right to
receive any funds related to the monetization of Customer’s Parked
- Customer agrees to
indemnify and hold harmless Company for any complications arising out of
use of the Parked Page Services, including, but not limited to, actions
Company chooses to take to remedy Customer’s improper or illegal use of
a web site hosted by Company. Customer agrees it is not be entitled to a
refund of any fees paid to Company if, for any reason, Company takes
corrective action with respect to any improper or illegal use of the
Parked Page Services.
- If a dispute arises
as a result of one or more of Customer’s Parked Pages, Customer will
indemnify, defend and hold Company harmless for damages arising out of
such dispute. Customer also agrees that if Company is notified that a
complaint has been filed with a governmental, administrative or judicial
body, regarding a web site hosted by Company, that Company, in its sole
discretion, may take whatever action Company deems necessary regarding
further modification, assignment of and/or control of the web site to
comply with the actions or requirements of the governmental,
administrative or judicial body until such time as the dispute is
- Company hereby
grants to Customer a limited, non-exclusive, non-transferable,
royalty-free license, exercisable solely during the term of this
Agreement, to use Company technology, products and services solely for
the purpose of accessing and using the Services. Customer may not use
Company’s technology for any purpose other than accessing and using the
Services. Except for the rights expressly granted above, this Agreement
does not transfer from Company to Customer any Company technology, and
all rights, titles and interests in and to any Company technology shall
remain solely with Company. Customer shall not, directly or indirectly,
reverse engineer, decompile, disassemble or otherwise attempt to derive
source code or other trade secrets from any of the Company.
- Company owns all
right, title and interest in and to the Services and Company's trade
names, trademarks, service marks, inventions, copyrights, trade secrets,
patents, know-how and other intellectual property rights relating to the
design, function, marketing, promotion, sale and provision of the
Services and the related hardware, software and systems ("Marks").
Noting in this Agreement constitutes a license to Customer to use or
resell the Marks.
Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through or
from Company, at Customer's own risk. Customer acknowledges and agrees that
Company exercises no control over, and accepts no responsibility for, the
content of the information passing through Company's host computers, network
hubs and points of presence or the Internet. THE
SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED
CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS,
SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY
INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "COMPANY
PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT
COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES
WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY
WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE
SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION,
SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES.
COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE
CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY
CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY
COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON,
WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
The terms of this section shall survive any termination of this Agreement.
- Company represents
and warrants to Customer that the Services will be performed (a) in a
manner consistent with industry standards reasonably applicable to the
performance thereof; (b) at least at the same level of service as
provided by Company generally to its other customers for the same
services; and (c) in compliance in all material respects with the
applicable Service Descriptions. Customer will be deemed to have
accepted such Services unless Customer notifies Company, in writing,
within thirty (30) days after performance of any Services of any breach
of the foregoing warranties. Customer’s sole and exclusive remedy, and
Company’s sole obligation, for breach of the foregoing warranties shall
be for Company, at its option, to re-perform the defective Services at
no cost to Customer, or, in the event of interruptions to the Services
caused by a breach of the foregoing warranties, issue Customer a credit
in an amount equal to the current monthly service fees pro rated by the
number of hours in which the Services have been interrupted. Company may
provision the Services from any of its data centers and may from time to
time re-provision the Services from different data centers.
- The foregoing
warranties shall not apply to performance issues or defects in the
Services (a) caused by factors outside of Company’s reasonable control;
(b) that resulted from any actions or inactions of Customer or any third
parties; or (c) that resulted from Customer’s equipment or any
third-party equipment not within the sole control of Company. EXCEPT
AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND
COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE
FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS
PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR
Limitation of Liability.
IN NO EVENT WILL COMPANY’S LIABILITY
IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY
ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS,
BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID
TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO SUCH LIABILITY.
COMPANY CANNOT GUARANTEE CONTINUOUS
SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION
OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE
LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE,
THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA,
INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
EXCEPT AS EXPRESSLY PROVIDED BELOW,
NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER
PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR
SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER
FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING
OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY
ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY,
REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
CLAIM OR DAMAGES.
- The limitations
contained in this Section apply to all causes of action in the
aggregate, whether based in contract, tort or any other legal theory
(including strict liability), other than claims based on fraud or
willful misconduct. The limitations contained in Section 15(c) shall not
apply to Customer’s indemnification obligations.
anything to the contrary in this Agreement, Company's maximum liability
under this Agreement for all damages, losses, costs and causes of
actions from any and all claims (whether in contract, tort, including
negligence, quasi-contract, statutory or otherwise) shall not exceed the
actual dollar amount paid by Customer for the Services which gave rise
to such damages, losses and causes of actions during the 12-month period
prior to the date the damage or loss occurred or the cause of action
understands, acknowledges and agrees that if Company takes any
corrective action under this Agreement because of an action of Customer
or one if its customers or a reseller, that corrective action may
adversely affect other customers of Customer or other reseller
customers, and Customer agrees that Company shall have no liability to
Customer, any of its customers or any Reseller Customer due to such
corrective action by Company.
- This limitation of
liability reflects an informed, voluntary allocation between the parties
of the risks (known and unknown) that may exist in connection with this
Agreement. The terms of this section shall survive any termination of
agrees to indemnify, defend and hold harmless Company and its parent,
subsidiary and affiliated companies, and each of their respective officers,
directors, employees, shareholders, attorneys and agents (each an
"indemnified party" and, collectively, "indemnified parties") from and
against any and all claims, damages, losses, liabilities, suits, actions,
demands, proceedings (whether legal or administrative), and expenses
(including, but not limited to, reasonable attorney's fees) threatened,
asserted, or filed by a third party against any of the indemnified parties
arising out of or relating to Customer's use of the Services, (ii) any
violation by Customer of the AUP, (iii) any breach of any representation,
warranty or covenant of Customer contained in this Agreement or (iv) any
acts or omissions of Customer. The terms of this section shall survive any
termination of this Agreement.
Company and Customer are independent contractors and nothing contained
in this Agreement places Company and Customer in the relationship of
principal and agent, master and servant, partners or joint venturers.
Neither party has, expressly or by implication, or may represent itself
as having, any authority to make contracts or enter into any agreements
in the name of the other party, or to obligate or bind the other party
in any manner whatsoever.
Governing Law; Jurisdiction.
Any controversy or claim arising out of or relating to this Agreement,
the formation of this Agreement or the breach of this Agreement,
including any claim based upon arising from an alleged tort, shall be
governed by the substantive laws of the State of California. The United
Nations Convention on Contracts for the International Sale of Goods does
not apply to this Agreement. ANY
SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN
A STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND
EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS
THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT,
ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
Headings. The headings
herein are for convenience only and are not part of this Agreement.
Entire Agreement; Amendments.
This Agreement, including documents incorporated herein by reference,
supersedes all prior discussions, negotiations and agreements between
the parties with respect to the subject matter hereof, and this
Agreement constitutes the sole and entire agreement between the parties
with respect to the matters covered hereby. In case of a conflict
between this Agreement and any purchase order, service order, work
order, confirmation, correspondence or other communication of Customer
or Company, the terms and conditions of this Agreement shall control. No
additional terms or conditions relating to the subject matter of this
Agreement shall be effective unless approved in writing by any
authorized representative of Customer and Company. This Agreement may
not be modified or amended except by another agreement in writing
executed by the parties hereto; provided, however, that these Terms of
Service may be modified from time to time by Company in its sole
discretion, which modifications will be effective upon posting to
Company's web site.
rights and restrictions contained in this Agreement may be exercised and
shall be applicable and binding only to the extent that they do not
violate any applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement illegal, invalid
or unenforceable. If any provision or portion of any provision of this
Agreement shall be held to be illegal, invalid or unenforceable by a
court of competent jurisdiction, it is the intention of the parties that
the remaining provisions or portions thereof shall constitute their
agreement with respect to the subject matter hereof, and all such
remaining provisions or portions thereof shall remain in full force and
Notices. All notices
and demands required or contemplated hereunder by one party to the other
shall be in writing and shall be deemed to have been duly made and given
upon date of delivery if delivered in person or by an overnight delivery
or postal service, upon receipt if delivered by facsimile the receipt of
which is confirmed by the recipient, or upon the expiration of five days
after the date of posting if mailed by certified mail, postage prepaid,
to the addresses or facsimile numbers set forth below the parties’
signatures. Either party may change its address or facsimile number for
purposes of this Agreement by notice in writing to the other party as
provided herein. Company may give written notice to Customer via
electronic mail to the Customer’s electronic mail address as maintained
in Company’s billing records.
Waiver. No failure or
delay by any party hereto to exercise any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right or remedy.
No express waiver or assent by any party hereto to any breach of or
default in any term or condition of this Agreement shall constitute a
waiver of or an assent to any succeeding breach of or default in the
same or any other term or condition hereof.
Customer may not assign or transfer this Agreement or any of its rights
or obligations hereunder, without the prior written consent of Company.
Any attempted assignment in violation of the foregoing provision shall
be null and void and of no force or effect whatsoever. Company may
assign its rights and obligations under this Agreement, and may engage
subcontractors or agents in performing its duties and exercising its
rights hereunder, without the consent of Customer. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
Limitation of Actions.
No action, regardless of form, arising by reason of or in connection
with this Agreement may be brought by either party more than two years
after the cause of action has arisen.
Counterparts. If this
Agreement is signed manually, it may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. If this Agreement
is signed electronically, Company’s records of such execution shall be
presumed accurate unless proven otherwise.
Force Majeure. Neither
party is liable for any default or delay in the performance of any of
its obligations under this Agreement (other than failure to make
payments when due) if such default or delay is caused, directly or
indirectly, by forces beyond such party’s reasonable control, including,
without limitation, fire, flood, acts of God, labor disputes, accidents,
acts of war or terrorism, interruptions of transportation or
communications, supply shortages or the failure of any third party to
perform any commitment relative to the production or delivery of any
equipment or material required for such party to perform its obligations
No Third-Party Beneficiaries.
Except as otherwise expressly provided in this Agreement, nothing in
this Agreement is intended, nor shall anything herein be construed to
confer any rights, legal or equitable, in any Person other than the
parties hereto and their respective successors and permitted assigns.
Notwithstanding the foregoing, Customer acknowledges and a