Terms of Service
- Last Updated: Thursday, 07 February 2013 03:50
This Agreement consists of this page, the Order Form, our Acceptable Use Policy ("AUP"), the Service Attachments (if any), and any addenda referenced by the Service Attachments, each of which is incorporated by this reference.
This Agreement is the complete understanding between the parties concerning its subject matter and replaces any prior oral or written communications between them. This document is dynamic - the most recent version of this document available on our website shall control the parties relationship. Except for prior obligations of confidentiality and/or nondisclosure, there are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified in this Agreement.
Term and Termination
Effective Date and Term
The initial term will begin on the Effective Date. The period between the Effective Date, and the date of Termination or Expiration, if any, is the "Term." Unless otherwise specified, the effective term for all services is one calendar month.
Unless otherwise specified in a Service Attachment, following the expiration of a service's respective term, the term will automatically renew for the length of the initial term ("Renewal Term") unless cancelled in writing by either party at any time.
We reserve the right to terminate this Agreement for a violation of our AUP or any other reason at any time.
In certain cases, this Agreement, or particular Service Attachments may be terminated by you within a defined period of time for any reason, or no reason at all ("Guarantee"). Any time provisions of this Guarantee begin to elapse on the Effective Date and are calculated on a calendar day basis.
A Guarantee only applies during the Term and does not apply to any Renewal Terms. Non-recurring charges, as defined below, are never subject to the Guarantee.
During the Term and any Renewal Terms, we may periodically review your credit history. This review may consist of a review of your payment history with us, your broader credit history as reported elsewhere, and the amount of fraud reported to us as originating with your account. By entering into this Agreement, you consent to this review, and the disclosure of your credit history, at our option, to recognized credit agencies.
You must pay any non-recurring charges, such as set up fees, as set out on our web site. Payment of these non-recurring charges is a pre-requisite to our obligation to provide services to you.
If you provide us with a credit card, we will bill all charges authorized by this Agreement to that credit card. In addition, we reserve the right to bill that credit card for past due services regardless of whether we regularly billed that credit card in the past. If you choose monthly billing, you are required to keep a valid credit card on file. Should you choose to remove this credit card, you will be required to choose a billing cycle for which recurring automatic charges are not required. We reserve the right to bill you for fees charged to us by our credit card processor, plus $200 special processing fee, for disputes initiated by you, which are resolved in our favor.
Automated credit card charges are applied during invoice generation, up to 10 days before the due date. If your card is declined the charge will be attempted until it clears. Once past the due date your account is considered past due. If payment is not received within 5 days, your service will be suspended. If payment is not received 10 days past the due date your service will be cancelled and all data deleted.
Unless otherwise set out on an individual Service Attachment, you agree to pay all charges by the due date indicated on the invoice ("Due Date"). You will pay us interest on payments made following the Due Date at the rate of 1.5% per month or the maximum rate allowable by law. You may be assessed a processing fee on late payments, at our sole discretion, if we incur administrative and/or legal costs associated with your late payment. Those costs are calculated on an hourly basis, rounded up to the next full hour, and are based on our current hourly rates. If your check is returned by your bank, you will be billed any return check fee charged to us plus a $25 special handling & processing fee. If you do not pay all undisputed amounts by the Due Date, we reserve the right to disconnect services and refuse to continue to provide them to you.
We have calculated our fees based on the Term. Accordingly, fees will only be refunded as is expressly set out in this Agreement. Regardless of the Guarantee, Effective Date, Term, or Renewal Term, should you be required to make advance payment for certain services, or pay certain service fees, those fees are not refundable should you choose to terminate the Agreement for any reason.
Charges for Previously Provided Services and Storage of Equipment
We reserve the right to bill you retroactively for any services provided to you for which we had not previously billed. We also reserve the right to bill you retroactively for the costs of the removal and storage of equipment you have placed in our facility if this Agreement is terminated and this equipment is not removed by you. We also reserve the right to sell your equipment to satisfy your outstanding storage charges.
You have up to 25 days (commencing five days after the date of our bill, or on the date on which your credit card is charged) to initiate a dispute over charges or to receive credits, if applicable. In order to dispute your bill, you must send us a written itemized description of the specific items you dispute in your bill. This itemization must be in sufficient detail for us to identify the items in dispute. We must receive this information prior to the date set out above. You agree to pay by the Due Date all charges not specifically itemized in your written notice of dispute.
You are responsible for all taxes and fees associated with the services which we are legally required or permitted to collect from you. These taxes and fees may include, but are not limited to, any sales, use, transfer, gross receipts, federal excise, right-of-way, franchise, privilege, property, occupational and similar taxes and surcharges, regardless of your physical location. If these taxes are assessed on us, based on the services provided to you, and we are required to pay these taxes, they will be billed to you, in addition to a reasonable special handling & processing fee. You are not responsible for taxes based on our income.
Use of Services
You are bound by our AUP, and may only use services provided by us for the purposes set out in the AUP. You are responsible for the activities of your customers and third party users of services provided by us through you.
Material, Services and Information
Connection speed represents the maximum speed of a connection and does not represent guarantees of available end-to-end bandwidth.
Hardware, equipment and software
You are responsible for, and must provide, all telephone, computer, hardware and software equipment, and services necessary to access our network. It is your obligation to determine if the equipment necessary to connect with our network, and interact with it, is compatible. We are not responsible for incompatibility of our equipment and network with yours. Such an incompatibility is not grounds for termination of this Agreement by you, nor shall it constitute a material breach by us.
We have determined what constitutes reasonable use of our network for the particular services and products you purchase from us. These standards are based on typical customer use of our network, for similar services and products. It is your obligation to monitor the use of your services and/or server(s) to ensure that there are not unusual spikes and peaks in your bandwidth or disk usage. We understand that your business often succeeds beyond your initial expectations, or that you may face, at times, unexpected or unforeseen traffic levels. For that reason, we are pleased to offer you unlimited bandwidth, up to the capacity of the server's connection (while metering and billing you based on the total traffic per month). However, should your use of our network and/or products exceed the limits described above, you will incur additional charges for that use. These charges will apply regardless of whether you initiated the additional use, or it was caused by a third party.
Licenses, Warranties, Limitation of Warranties, and Limitation of Liability
Licenses and Intellectual Property
License from us to you
We grant to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by us solely to access and use the services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in our technology shall remain with us or our licensors. You are not permitted to circumvent any devices designed to protect our, or our licensor's, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
Any license provided to you, is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
Licenses from you to us
We may use information you provide to us for technical support, implementation, operation or administration of the services (Operational Information). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.
You grant to us, and any third parties used by us to provide the services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, your End Users, or your licensors.
Representations and Warranties
We each warrant to the other that: (i) we have the power, authority and legal right to enter into this Agreement; and (ii) we have the power, authority and legal right to perform our obligations under this Agreement and all incorporated provisions.
Your Representations and Warranty
You represent and warrant to us that: (i) you have the experience and knowledge necessary to use the services; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the services without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the service to take advantage of the service; (v) that you understand that you may not be able to access location based services, such as "911" emergency calls, using the service; (vi) that in entering into this Agreement, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vii) that you will make back-up copies of your data even if you purchase "back-up" services from us.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the services. You also warrant that to the extent you do business with other parties using the services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
Our Representations and Warranty
For each service we provide, we warrant that we will perform in a competent manner.
Disclaimers and Limitations of Liability
EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
YOU MAY NOT BE ABLE TO USE LOCATION BASED EMERGENCY PRODUCTS, SUCH AS "911," USING THE PRODUCTS. WE HAVE NO LIABILITY FOR DAMAGES OR INJURIES, OF ANY TYPE, THAT YOU, EMPLOYEES, AGENTS OR AFFILIATES SUSTAIN BASED ON THE FACT THAT LOCATION BASED PRODUCTS ARE UNAVAILBLE. YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS BASED ON THIRD PARTY CLAIMS BASED IN WHOLE OR IN PART ON THEIR INABILITY TO USE A LOCATION-BASED SERVICE.
PRODUCTS AND SERVICES PURCHASED THROUGH US ARE SOLD AS-IS. TO THE EXTENT THAT THESE PRODUCTS AND SERVICES HAVE WARRANTIES, YOU AGREE TO LOOK TO THE MANUFACTURER OR SUPPLIER FOR ALL CLAIMS. WARRANTIES MADE BY THESE MANUFACTURERS AND SUPPLIERS MAY NOT BE PASSED THROUGH TO YOU, AND WE EXPRESSLY DISCLAIM ANY OBLIGATION TO AFFECT SUCH A PASS THROUGH SHOULD ONE BE POSSIBLE.
IN NO EVENT WILL STARLITE DEZIGNS' LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY STARLITE DEZIGNS FROM CUSTOMER FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM STARLITE DEZIGNS SHALL BE INTERPRETED TO INCLUDE STARLITE DEZIGNS' EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH STARLITE DEZIGNS.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD STARLITE DEZIGNS OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF STARLITE DEZIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS STARLITE DEZIGNS' LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless Starlite Dezigns and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders 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 (i) your use of our products (ii) any violation by you of the AUP; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
If you fail to comply with any terms of this Agreement, you shall be fully responsible for the cost of labor and any and all other costs, losses or legal expenses incurred by us in order to rectify the damage caused by you, or due to that damage.
Operation of Facilities
In order to implement the services, you may be required to provide us with technical information. If we do not receive this information in a commercially reasonable amount of time, and the Agreement is terminated by us, you will continue to be responsible for all non-recurring charges, and any recurring charges accrued and/or invoiced up to and until termination. We may provide you with an IP address, or addresses. We retain ownership of these IP addresses and may change them at any time. Upon termination of this Agreement, you will not have the ability to transfer these addresses.
Operation of Our Facilities
We retain the right to maintain and operate our facilities in such a manner as will best enable us to conduct our normal business operations. You may not terminate this Agreement based on changes in this operation unless such a change materially alters the type of product or service provided by us. In particular, you are not guaranteed a particular IP or IP block, shared server allocation, server rack, colocation space, or other physical location. At times, IP renumbering of server/equipment moves may be necessary; you agree to cooperate with us in the case of such a renumbering or move.
The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Regardless of your location, you agree that for purposes of venue and jurisdiction this contract was entered into and performed in Walla Walla County, Washington, and any dispute will be litigated or arbitrated in Walla Walla County, Washington. Customer further waives all objections to venue or jurisdiction and acknowledges that venue and jurisdiction in any such litigation will be held in Walla Walla County Courts. IN NO EVENT SHALL STARLITE DEZIGNS' MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) DOLLARS.
Other than obligations regarding payments or confidentiality, neither party shall be in default or otherwise liable for any delay in or failure to perform under this Agreement if such a delay or failure is caused by an event beyond its reasonable control. Events beyond a party's reasonable control include, but are not limited to, any act of God, any act of a common enemy, the elements, earthquakes, floods, fires, epidemics, inability to secure products or services from other persons, entities or transportation facilities, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or contractors. Such a delay or failure shall not constitute a breach of this Agreement. Lack of funds shall not constitute a reason beyond a party's reasonable control.
Transfer and Assignment
You may not sell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We reserve the right to transfer services we provide to you, or assign this Agreement, at any time, without your consent or knowledge.
Any failure or delay on our part in exercising any of the rights or powers given to us in this Agreement shall not operate as a waiver of such a right or power, or affect our right to exercise the same or any other right or power at a later date.
Should any paragraph or aspect of this Agreement be determined to be contrary to law, the remainder of the Agreement shall be interpreted in such a manner as if the omitted portions had not been included.