1. This Document
b) The internet infrastructure products we will provide to you are referred to as Services. You chose which Services to purchase on our (1) Order Form or agreed to on our (2) Estimate or (3) Invoice for Services (each of these 3 methods will herein be referred to as Order Forms).
c) The Effective Date of this Services Agreement is the date at which you sign up for an account through our online form or pay for Services through an Invoice, unless a particular date is given in an addendum to this agreement.
d) Your customers, or other parties who use the Services we provide through you, are referred to as “End Users.”
e) This version of the Services Agreement is dated September 18, 2015. From time-to-time we may need to update it. We will provide you with notice in your customer portal of any changes. Except when we must make a change in an emergency, or to comply with a law, we will provide you with thirty days prior notice of any change. The revised version of the Services Agreement will be effective at 12:00 a.m. Mountain Time on the 31st day. If the revisions materially alter your use of the Services, you may terminate this Services Agreement without penalty within the thirty day period before the new version becomes effective. If you have to terminate this Services Agreement for that reason, you agree to provide us with the termination notice as set out in paragraph 5(b).
f) In the Order Form, you designated an individual as “Client.” This individual will have the authority to make changes to your account. In addition, any other individual who is able to provide us with authentication credentials will also be able to access your account and the Services. It is your obligation to control these credentials. The individual or entity set out in the Order Form as the Client is the owner of your account. You may change this designation through your control panel. If you are administering the account on behalf of another entity, you agree to do so in good faith and indemnify us from any claims made against us based on your administration, as set out in the paragraph entitled “Indemnification.”
2. The Services
a) We grant a license to you to use the Services during the Term as defined below. This license is contingent on your compliance with this Services Agreement, and contains only those rights expressly set out in it. The license is a limited, personal, non-transferable, non-exclusive license to use the Services during the Term. You may sublicense the Services to End Users strictly in accordance with this Services Agreement.
b) You grant us, our affiliates, providers of Third Party Services, and subcontractors, a limited, personal, transferable, nonexclusive license to use your data during the Term for the purposes of providing hosting services. You agree to sub-license to us, and the other parties set out in the prior paragraph, the data of your End users.
c) We will provide the Services to you, according to this Services Agreement. We do not have to provide the Services to you if you are in breach of this Services Agreement.
d) We will not arbitrarily make changes to the Services. However, from time-to-time, we may make minor changes to address technical issues and ensure the stability of our network. We will not provide you with notice of these minor changes unless we have a reasonable belief that such a change will affect our general customers’ use of the Services.
e) From time-to-time either we, or the providers of Third Party Services, may cease supporting aspects of the Services, or provide replacement components (End of Life). Should components of the Services come to the End of Life, we will use commercially reasonable efforts to replace them with comparable components. Should we be unable to do so, we agree to provide support for these components for ninety days from the date we notify you of End of Life. This support does not include Third Party Services.
f) If set out on the Order Form, certain aspects of the Services may be in beta form (Beta Services). In addition to the disclaimers of warranty set out in this Services Agreement, the Beta Services are provided with the express understanding that they may not have been tested, have faults, and are not secure. We reserve the right to terminate the Beta Services at any time, even if you have relied on them as a material inducement to enter into this Services Agreement. We make no guarantee that Beta Services will be put into production.
g) We may incorporate the services of third parties into the Services (Third Party Services). The providers of Third Party Services may have reserved the right to make changes in their services. If we are unable to secure replacement services on terms that are reasonable to us, we may discontinue the affected Third Party Services. We are not in breach of this Services Agreement, and you may not terminate it, in such a case.
h) We have designed the Services to operate in the manner used by most of our customers. This Services Agreement does not provide professional services to configure the Services to your specific needs. You may need to purchase additional equipment in order for the Services to operate. In addition, your equipment must be configured properly to connect to or receive the Services.
We will use commercially reasonable efforts to make the Services available to you. You agree to use the Services as set out in this Services Agreement in a commercially reasonable manner and to provide us with information we need to provide the Services to you.
i) Our SLA sets out our obligations in the event the Services are unavailable. It does not apply to planned or emergency downtime as those terms are defined in it. The SLA is your only remedy for downtime.
j. If you purchase a dedicated IP address from us, we grant you the right to use the IP address we assign to you during the Term. You only have the right to use this IP address during the Term and subject to this Services Agreement. Upon the end of the Term, this IP address will be recycled by us and reused; you will have no further right to use it. You will have no access to the equipment providing the dedicated IP address.
k) Services set out on the Order Form which are designated as “Premium” Services are hosted in a clustered environment and provide the ability to scale the Services up and down (Premium Services). Bandwidth and transfer for Premium Services are metered. This means you will be charged for the use of the Premium Services based on the fees and calculation method set out on the Order Form. If the Order Form sets a cap on your use of the Premium Services, paragraph 11 describing fees for bandwidth, storage and/or transfer overages applies.
l) Our Services are duplicated for disaster recovery purposes (Disaster Backup). Disaster Backup is designed for our needs: to restore the Services in an emergency. Data restored from a Disaster Backup may not be formatted in the original manner, and may not capture all data. We have no liability to you, or End Users, to restore all of your data. Disaster Backups are not designed for litigation purposes.
a) We provide general support through a knowledge base and an email based ticket system (Support). All requests for general Support must be made through our ticketing system located at http://1stchoicewebsitesolutions.com.
b) In a true emergency, we provide telephone assistance. You agree that the term “true emergency” means that your site is inoperable.
c) Support is specifically subject to our disclaimers of liability set out in paragraph 9. If your use of Support demonstrates that you do not have the necessary knowledge to use the Services, we may limit your use of it.
d) We solicit your feedback when providing you with Support. We own this feedback.
a) Our charges to provide the Services to you are set out on the Order Form (Fees). We may change the Fees upon the expiration of any Term. However, we may change the Fees prior to the expiration of any Term if a Third Party Services vendor raises their fees to us.
b) You will be charged the Fees beginning on the Effective Date. Our schedule of payments is set out on the Order Form Fees are not refundable except as expressly stated in this Services Agreement.
c) Fees are due on the date set out on the Order Form, or if no date is set out on it, on the last business day of each month (Due Date).
d) We will collect the Fees by debiting the method of payment you provided to us on the Order Form. Credit, debit, or other similar sources of payment may be debited up to one week prior to the Due Date. For contracts having a term of twelve months or more, we will accept payment on our presentation of an invoice. You must keep the method of payment current, and able to be debited. It is your responsibility to ensure that the Fees are paid. We have no liability should the Services be suspended because we fail to receive payment due to an invalid payment method.
e) We may be required to collect taxes on the Services (Taxes). Taxes will be added to the Fees and you agree to pay them, unless you provide us with a valid tax exemption certificate. We will not charge you for taxes assessed on our income.
f) If you do not pay the Fees by the Due Date, we will suspend your ability to use the Services, and may terminate this Services Agreement. In addition, Third Party Services, like domain names, may be forfeited. We may also send you to collections, and add any charges associated with collecting unpaid Fees, to the Fees. If the Services are suspended because we do not receive the Fees, we will preserve your data for thirty days from the date of suspension. After that time it will be deleted.
g) If you believe that a Fee we have charged you is not accurate, you agree to notify us within thirty days of our charge. Your notice must be submitted through our trouble ticket system, or US Postal Service, and have enough information for us to investigate your dispute. We agree not to suspend the Services in dispute as long as your dispute is reasonable, made in good faith, and you cooperate with us to resolve it.
h) If the Order Form states that you qualify for a 60-day money-back guarantee, this guarantee applies only to Services we provide and not Third Party Services (like domain names and SSL certificates) or Services that are custom or non-standard.
i) We may offer promotions that discount Fees, or otherwise apply to the Services (Promotions). Promotions are subject to the terms and conditions accompanying them and expire. We may not offer Promotions to current customers. We may also waive certain Fees. These waivers apply according to their terms, and may result in the extension of the Term.
5. Term and Termination
a. This Services Agreement has the term you have chosen on the Order Form (Term). Upon expiration of the initial Term, this Services Agreement will renew for the same amount of time as the initial Term.
b. We each agree to provide the other with written notice, no later than thirty days prior to the expiration of a particular Term, of intent to terminate. We will provide you with notice in your customer portal, and you agree to provide us with notice as set out in this Services Agreement. To terminate this Services Agreement, you must open a ticket in our support system. We will acknowledge your request in the ticket. If you do not receive an acknowledgement within ten days, you must resubmit your request. Terminations are only effective following our acknowledgment.
c) If the termination notice period above exceeds thirty days, you agree to pay us an Early Termination Fee should you fail to provide us with timely notice of your intent to terminate. The Early Termination Fee is calculated by multiplying the number of months left in the remaining Term by the average Fee charged during the months billed in the Term you are cancelling. You agree that we calculated the Fee based on your acceptance of the Early Termination Fee, and that it was a material inducement to our willingness to enter into this Services Agreement with you.
d) You may terminate this Services Agreement prior to the end of a Term if we materially breach this Services Agreement, you have provided us with written notice of this breach and we have failed to cure it within thirty days from the date of your notice.
c) Even if other termination provisions in this Services Agreement provide differently, we may terminate this Services Agreement prior to the end of a Term if: (i) you materially breach this Services Agreement, we have provided you with written notice of this breach, and you have failed to cure the breach within ten days from the date of our notice; (ii) you fail to pay Fees by the Due Date; (iii) your use of the Services endangers our network, violates the law, or inhibits our ability to provide the Services to our other customers; or (iv) it becomes economically not feasible to continue to provide the Services to you.
d) Upon termination you will no longer have access to the Services. This means that data may not be available to you. It is your obligation to download Data prior to termination or the end of a Term. Upon termination, all Services will be placed in the recycle queue and Data will be deleted. We are not responsible for this deleted Data.
a) During the Term you may gain access to information relating to our business, customers, software technology and marketing, including, but not limited to, aspects of the Services and Support. This is our Confidential Information. You agree that during the Term, and in perpetuity after the end of the Term, to: (i) hold in confidence, and not disclose or reveal to any person or entity the Confidential Information; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than pursuant to your rights under this Services Agreement, so long as such a disclosure is within the terms of this Services Agreement.
b) The term “Confidential Information” does not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to us; (ii) was known to you prior to its disclosure by us without breach of any obligation owed to us; (iii) is received from a third party without breach of any obligation owed to us; or (iv) was independently developed by you without reference to the Confidential Information.
c) You acknowledge that any breach of the provisions of this section governing Confidential Information may result in irreparable harm to us for which money damages may not be adequate. As a result, in addition to all other rights to which we may have at law or in equity, we shall be entitled to seek a decree of specific performance or injunctive relief against you.
a) What both parties warrant: Each party warrants that they have the power, authority and legal right to enter into this Services Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference.
b) What we warrant: We warrant we own all of the intellectual property that we created when it is incorporated into the Services. If we do not own the intellectual property incorporated into the Services, we warrant that we have a license to use it.
c) What you warrant: You warrant that you, and your End Users, own, or have a license to use, all of the intellectual property that is placed on, or transmitted via, the Services. At our request, you will provide us evidence of this ownership or license. You warrant that neither you, nor your End Users’, use of the Services will infringe the intellectual property or other proprietary rights of us, the providers of Third Party Services, or any other individual or entity. You warrant that all information you provide to us is complete, accurate and up-to-date. Finally, you warrant that you are over eighteen years of age.
OTHER THAN AS IS EXPRESSLY SET OUT IN PARAGRAPH 7, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SERVICES AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AGAIN, EXCEPT AS PROVIDED IN THIS SERVICES AGREEMENT, EACH PARTY AND THEIR LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE MAKE NO, AND SPECIFICALLY DISCLAIM ANY, WARRANTIES AS TO THIRD PARTY SERVICES.
9. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET OUT IN THIS SERVICES AGREEMENT, IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF, OR RELATED TO, THIS SERVICES AGREEMENT, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE ONE MONTH FEES PAID BY CUSTOMER TO US. THE PROVIDERS OF THIRD PARTY SERVICES SHALL HAVE NO LIABILITY TO YOU UNDER THIS SERVICES AGREEMENT, AND WE SHALL HAVE NO LIABILITY TO END USERS.
IN NO EVENT SHALL EITHER PARTY OR THEIR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE SERVICES OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT OUR SLA IS YOUR SOLE AND EXCLUSIVE REMEDY FOR INTERRUPTION IN THE SERVICES, AND ANY OTHER ITEM SET OUT IN THE SLA. THIS DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
a) Our indemnification of you: We agree to defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that your permitted use of our intellectual property infringes or misappropriates the U.S. patent or copyright, trademark or other intellectual property interest of a third party. We will indemnify you for damages finally awarded against you (or for a settlement amount we consent to), and for your reasonable attorneys’ fees. Our obligation to indemnify you is contingent on your providing us with notice of the claim (unless your failure to provide us with notice does not prejudice our ability to defend the claim), and your giving us sole control of the defense and/or settlement of the claim, with your reasonable assistance. Upon notice of a claim, we may cease providing the allegedly infringing Services to you. You agree that our indemnification obligation extends only to those aspects of the Services owned by us. We will not indemnify you for claims made based on your use of Third Party Services, changes that you have made to the Services or software you have added to them, or if you continue to use the Services after we have asked you to cease.
b) Your indemnification of us: You agree to defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your data, that of your End Users, your use of the Services, or that of your End Users, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; or is based on your violation of paragraph 11 below, or your End Users’ activities that violate these paragraphs, activities which you were required by this Services Agreement to prohibit. You will indemnify us for damages finally awarded against us (or for a settlement amount you consent to), and for our reasonable attorneys’ fees.
c) This section states the indemnifying party’s sole liability to, and the indemnifying party’s exclusive remedy against, the other party for any type of third party claim for infringement or other claim set out in it.
11. Acceptable Uses
a. The internet is essentially unregulated. Using our Services requires common sense, and you agree not to use the Services in ways that violate the law, harm other people, or our network, or breach internet “community standards.” You may not use the Services to enable others to do those things. We have set out specific prohibited activities in this paragraph. However, because the nature of what is an acceptable use of the internet is constantly evolving, we reserve the right to make changes to this section at any time. We agree to provide you with notice of these changes, and if they materially affect your use of the Services, you may terminate this Services Agreement without an Early Termination Fee if applicable. You agree to incorporate this section, or restrictions no less protective of our interests, into your contract with your End Users.
b. You may not use the Services to violate any local, state or federal law or regulation. In particular, you may not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica or bestiality; gambling, whether for remuneration or simple pleasure; defamation, harassment or libel; false advertising; transmission of malicious code or to gain access to other networks.
c. You must use the Services to transmit email responsibly. Sending or promoting SPAM using the Services is prohibited. We consider SPAM to be the transmission of any email messages that are in violation of the most recent regulations issued by the Federal Trade Commission implementing the CAN-SPAM Act. In addition and at our discretion, we may place limits on the number of outbound messages you send if our review of your account indicates that you are jeopardizing our network stability. Should we determine that you are using the Services to transmit SPAM, we will add a $500 abuse charge for each confirmed violation of this paragraph.
d. You may not overburden the Services. You may not place excessive burdens on our, or the providers of Third Party Services’, CPUs, servers or other resources, including storage and bandwidth, or interfere with the services we provide to other customers. You may not use excessive bandwidth, data transfer or storage. If your Services are unmetered, and your use of them exceeds the use of the Services by similarly situated customers, we may offer to move you to a metered plan. If you refuse to move to a metered plan, we may place restrictions on your use of the Services until your use corresponds with that of similarly situated customers.
e. If the Order Form sets out an amount of data transfer or number of page accesses via a single IP address (Page Visits) you may use, you agree not to exceed this amount. If you do, and we choose not to limit your use of the Services, your data transfer or Page Visits over the contracted amount will be billed at our then current rate.
f. You may not use, or provide, open proxies or Internet Relay Chat.
g. Should we determine that you have violated this section, we will add a $500 abuse charge. This charge will be added per violation, and, in the case of SPAM, is in addition to the SPAM abuse charge.
a) We will use commercially reasonable efforts to ensure the security of our internal networks from malicious activity. However, security is a shared responsibility. You agree to configure your use of the Services in such a way as to maintain the security of our Services and network. This configuration includes, but is not limited to, only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords.
b) Should we determine that our network has been accessed in an unauthorized manner, and that unauthorized access impacts your Services, we agree to notify you as soon as possible, but only after we have investigated the unauthorized access and fulfilled our legal obligations under the law governing this Services Agreement. You agree to the same notification provisions should you determine that there has been unauthorized access using the Services.
c) We shall be entitled to rely on authentication credentials provided to us to access the Services. This means that we may rely on the integrity of passwords and other methods of authentication such as credit card numbers.
13. General Provisions
a) This Agreement is governed by the laws of the State of Arizona, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the State of Arizona, located in Phoenix, Arizona. The United Nations Convention on the International Sale of Goods is disclaimed. The parties agree that venue and jurisdiction is proper in this court, and agree not to contest notice from this court. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS SERVICES AGREEMENT. The parties further agree that the pricing and terms of this Services Agreement were made in reliance upon agreement to this paragraph.
b) Waiver: Except as expressly provided herein, this Services Agreement, including any other contracts incorporated by reference, may only be amended as set out in this Services Agreement or by the parties in a written amendment. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Services Agreement, this shall not operate as a waiver of that right, remedy or power, whether under this Services Agreement or at law or equity.
c) Assignment: This Services Agreement is binding on, and shall inure to the benefit of, the respective parties. It may be assigned by either party with the following exceptions: you may not assign this Services Agreement to a competitor of ours; and neither party may assign the Services Agreement to an entity having little or no assets in a direct, or indirect, attempt to avoid responsibility or liability for this Services Agreement.
d) Any provision in this Services Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or this Services Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the parties’ intent.
e) Entire Agreement: This Services Agreement, and any contract incorporated by reference, states the entire agreement between the parties and supersedes all previous proposals, negotiations and other written or oral communications between the parties with respect to the subject matter stated in them.
g) Force Majeure: We shall not be deemed to be in default of this Services Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from: acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, failure of telecommunication facilities or any other circumstances beyond our reasonable control. Your sole and exclusive remedy for a failure of, or delay in, the Services is our SLA.
h) Third Party Beneficiaries; Relationships: There are no third party beneficiaries to this Services Agreement. Should an End User claim to be a third party beneficiary of this Services Agreement, you agree to indemnify us for any claims made against us by your End User. The parties to this Services Agreement are independent contractors. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, or on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
i) Notices: Notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, five business days after being mailed to the designated address by first class mail. Notices to you shall be made to the address set out in our customer record. You expressly agree that you will keep this address updated and be responsible for the consequences of failing to do so. Notices to us shall be delivered to: 1st Choice Website Solutions, 908 W. Chandler Blvd, Building D, Chandler, AZ 85225.
j) The following sections shall survive termination or expiration of this Services Agreement: 2, 3, 6, 8, 9, 10, 13.