This document sets out the Acceptable Use Policy (“AUP”) of FullCtl (“Vendor”), which is incorporated into and made a part of Vendor’s Terms of Service, and you (the “Customer,” “You” or “Your”) agree to be bound by the terms of this AUP.
Acceptable Use
Vendor requires that all customers and other users of Vendor’s cloud-based service (the “Service”) conduct themselves with respect for others. In particular, Customer must observe the following rules in Customer’s use of the Service and to ensure that Your affiliates, employees, agents and representatives also observe them:
Abusive Behavior: Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group.
Privacy: Do not violate the privacy rights of any person. Do not collect or disclose any personal address, social security number, or other personally identifiable information without each holder’s written permission. Do not cooperate in or facilitate identity theft.
Intellectual Property: Do not infringe upon the copyrights, trademarks, trade secrets, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder.
Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide the Service. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial of service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other users of the Service.
Spam: Do not send bulk unsolicited emails (“Spam”) or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way. Do not violate the CAN-Spam Act of 2003.
Fraud: Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way.
Violations of Law: Do not violate any law.
Flow Down
You agree to pass the obligations of this AUP through to Your own customer and other end users and to cooperate with Vendor in the enforcement and administration of this AUP. Any violation of this AUP by Your customer or other end user shall be deemed to be a violation by You of this AUP and of the Terms of Service.
Security
Customer accepts sole responsibility for ensuring that Your data is secure, that confidential information remains confidential, and that You do not expose Your business to risks that you are not prepared to assume. Vendor reserves the right to take immediate action to suspend or terminate Your account with or without advance notice if, in Vendor’s sole and exclusive discretion, You, Your customer, or any end user is engaging in activities that jeopardize Vendor’s security, the security of Vendor’s other customers, or the security of the Internet in general.
Consequences of Violation
Any violation of this Acceptable Use Policy (this “AUP”) may lead to suspension or termination of the Customer’s account and/or legal action, in Vendor’s sole and exclusive discretion and with or without advance notice. In addition, in Vendor’s sole and exclusive discretion, You may be required to pay for the costs of investigation and remedial action related to AUP violations. Vendor reserves the right to take any other remedial action it sees fit, in Vendor’s sole and exclusive discretion. You agree to hold Vendor harmless from any claims that Vendor’s action under this section has damaged You or any party claiming through you, such as your own customer or end user.
Reporting Unacceptable Use
Vendor requests that anyone with information about a violation of this AUP report it via email to the following address: [email protected]. Please provide the date and time (with time zone) of the violation and any identifying information regarding the violator, including email or IP (Internet Protocol) address if available, as well as details of the violation.
Revision of AUP
Due to the evolving nature of the Internet and of the Service, Vendor reserves the right to change this AUP at any time by posting a new version at https://FullCtl.com/legal/ and sending the user written (including electronic) notice thereof, whether by means of an email notification or by posting such notification on Your portal or dashboard associated with Vendor’s services, and You expressly agree to this reservation of rights. Any new version of this AUP will become effective on the date of such notice.
This Privacy Policy describes the ways in which FullCtl (“Vendor,” “we,” “us” or “our”) collects, uses, maintains, and discloses information collected from customers, visitors to our websites, and visitors to customers’ websites (together, “Users”). We reserve the right to change this Privacy Policy at any time by posting a new version at https://FullCtl.com/legal/, and any updates shall take effect as of the date on which notice of such updates is posted to Vendor’s customer web site.
In the course of providing Services to Users, we collect certain types of information. The fact that certain information is discussed in this Privacy Policy does not necessarily mean we consider such information to be private. This Privacy Policy supplements but does not replace our Terms of Service and Acceptable Use Policy and is incorporated into the Terms of Service by this reference.
This Privacy Policy applies only to our Website and to the products and services provided through our Website. It does not apply to any third party site or service linked to our Website or recommended or referred by our Website, through our products or services, or by our staff. And it does not apply to any other website, product, or service operated by our company, or to any of our offline activities.
Data Collection
We use various means of collecting information about Users. These include:
Our website uses cookies. “Cookies” are small data files that are placed automatically on a User’s computer by our computers. These data files are read by our computer to determine whether you have visited our site before, and if so, how often, for what length of time and which pages you view.
Users who are or become customers provide us with information such as name, address, phone number, user name, credit/debit card or bank information and other personally identifiable or confidential information. This information may be aggregated to create an administrative record that includes information related to the products and services provided to you, how you use those services, problems related to the services, and our notations about our relationship with you, among other things (collectively, “Customer Information”).
If you contact us about a problem or with a question, we may ask you for specific information related to the reason you have contacted us (“Customer Inquiry Information”). Customer Inquiry Information may be tied or input into your Customer Information.
All of our servers collect statistical information such as your IP address, date you visited, computer you are using, and operating system, among other data (“Statistical Information”).
Third Party Products and Services. We offer products and services that are provided by third parties (“Third Party Products”). These Third Party Products may collect and use information in ways that differ from those set out in this Privacy Policy. You should review the Privacy Policy of each party offering Third Party Products to learn about such party’s specific privacy policy.
Data Usage
General Information. All information either alone, or when combined with other information, may be processed in such a way as to identify Users individually. This section describes how we use various categories of information, and whether we use it, or process it, in ways which can identify a User individually.
Cookies. We use the information provided by the cookies to change the way our website looks to you; to keep you logged in to certain areas of the website; and to collect demographic data about where visitors to our website go and how they behave. We do not use this data to identify Users individually.
Registration and Billing Information. We use Registration and Billing Information to identify Users individually. Registration and Billing Information is used throughout our business to provide services to you, and to market new products and services to you. Information related to payment, such as a User’s credit card number, is only used to ensure we receive payment for services rendered. It may be shared with third parties affiliated with us if they provide services through us to you and those services are billed by them independently. Currently, no other Registration and Billing Information is disclosed outside.
Customer Inquiries. We use Customer Inquiry Information to identify Users individually. It is used throughout our business to provide services to you, and to market new products and services to you. Customer Inquiry Information is shared with third parties in the following circumstances: to identify and fix problems with services when we are not capable of doing so ourselves. When Customer Inquiry Information is shared with third parties in this way, the third parties are required to keep this information confidential.
Statistical Information. We use statistical information to operate our hardware and software, diagnose problems and administer our website. We may use aggregate information to modify the products and services we offer based on who is visiting our website, and what they are purchasing. We do not use this data to identify Users individually.
Other disclosures. We are required to comply with relevant laws, regulations and judicial orders. Information covered by this Privacy Policy, as well as other categories of information, may be disclosed to third parties if we determine, in our sole discretion, that such a disclosure is necessary or required. We may also disclose this information if in our sole discretion such a disclosure is necessary or required to protect our interests or the interests of our customers. We may also disclose this information in connection with the sale of our business.
Data Security
The information set out in this Privacy Policy is protected using industry-standard security measures. Unless disclosure is authorized as set out above, our employees are required to keep User information confidential. However, no means of communication or information transmission or storage is totally secure, and we therefore cannot guarantee the security of the Services. Accordingly, we cannot be responsible for loss, corruption, or unauthorized acquisition and use of information, or for any damages resulting therefrom, including unauthorized acquisition and use. By using our Services, you acknowledge and agree that we make no such guarantee, and that you use our Services at your own risk.
Monitoring Services, Cooperation with Law Enforcement and Legal Documents
Customers are solely responsible for ensuring that materials disseminated or posted using our services comply with this Privacy Policy and relevant laws. We do not review, edit, censor, or take responsibility for any information Customers or Users may create. Because of this, we cannot accept any responsibility from customers, Users, or third parties, which results from inaccurate, unsuitable, offensive, or illegal content or transactions.
We may disclose information, including information that customers or Users may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request. We assume no obligation to inform a customer or User that information has been provided and, in some cases, may be prohibited by law from giving such notice. We may also disclose such information when it is necessary for us to protect ourselves, or others, from harm.
Options and Inquiries
To modify or update your Registration and Billing Information please contact us via email at [email protected].
This FullCtl Service Level Agreement (“SLA”) shall apply to the FullCtl Service Description between FullCtl (“FullCtl”) and Customer and to any attachments or schedules attached thereto or incorporated by reference therein (the “Service Description”).
Applicability
This SLA is part of the Service Description and this SLA is coterminous with the Service Description (such that termination the Service Description constitutes termination of this SLA). In case of a conflict between the terms and conditions of the Service Description and this SLA, the terms and conditions of the Service Description shall prevail. This SLA is applicable to the delivery and operation of the services directly connected to the FullCtl Switching Fabric by FullCtl to the Customer. Subject to FullCtl’s commercially reasonable efforts, this SLA defines the service levels, the quality of the services, the service credits (if applicable) for non-delivery, unavailability or under performance and the processes and procedures to be followed, and provides a mutual understanding of service level expectation. Capitalized terms used in this SLA and not otherwise defined herein shall have the meanings ascribed in the Service Description or the FullCtl Terms of Service.
Limitations
This SLA is only applicable to the Customer connection as long as the Customer is in compliance with all provisions of the Service Description and the FullCtl Terms of Service.
This SLA is only applicable to services that are directly connected to the FullCtl Infrastructure.
Total monthly service credit will not exceed 100% of monthly charges.
Summary of SLA
As described in more detail below, the SLA provides goals in the following five key areas. FullCtl shall use commercially reasonable efforts to meet them.
The FullCtl Switching Fabric available to Customer free of Network Outages 100% of the time.
Latency of the FullCtl Switching Fabric of 10 milliseconds or less.
Packet Loss of the FullCtl Switching Fabric of 0.1% or less.
A FullCtl Internet connection will be available to the customer free of Network Outages 100% of the time.
Rapid response time for both provisioning and reported service problems.
FullCtl Switching Fabric Availability
FullCtl’s goal is to make the FullCtl Switching Fabric available to Customers free of Network Outages 100% of the time. Subject to Sections 8, 9 and 10 below, upon Customer’s request, FullCtl will issue a credit to Customer for Network Outages in an amount equal to one day’s worth of the Base Fee paid by Customer, multiplied by each hour of the cumulative duration of such Network Outages during a particular month.
FullCtl Switching Fabric Latency
FullCtl’s goal is to keep Latency on the FullCtl Switching Fabric to 10 milliseconds or less.
Subject to Sections 8, 9 and 10 below, if Latency on the FullCtl Switching Fabric, as applicable, for a calendar month exceeds the time frame set forth above for the applicable portion of the FullCtl Switching Fabric, FullCtl will issue a credit to Customer equal to one day’s worth of the Base Fee paid by Customer for such month.
The terms of this FullCtl Switching Fabric SLA related to Latency will take effect the first full calendar month after Customer’s first use of the FullCtl Switching Fabric. Customer agrees to pay all fees as set forth in the Service Description.
FullCtl Switching Fabric Packet Loss
FullCtl’s goal is to keep Packet Loss on the FullCtl Switching Fabric to 0.1% or less.
Subject to Sections 8, 9 and 10 below, if Packet Loss on the FullCtl Switching Fabric exceeds 0.1% during a calendar month, FullCtl will issue a credit to Customer equal to one day’s worth of the Base Fee paid by Customer for such month.
The terms of this FullCtl Switching Fabric SLA relating to Packet Loss will take effect the first full calendar month after Customer’s first use of the FullCtl Switching Fabric.
Response Time
Upon official notification, FullCtl is committed to use commercially reasonable efforts not to exceed one (1) business day repair time for service problems. If FullCtl is unable to correct the outage after one (1) business day, Customer will be eligible for a credit as set forth in this Section 7.
After execution of the Service Description, if the initial provisioning takes more than five (5) business days, the Customer will be eligible for a credit equal to one day’s worth of the Base Fee paid by Customer for such month.
Any requested configuration changes (excluding major changes or any changes that require any amendment to the Service Description) will be completed within one (1) business day after being submitted to the FullCtl portal, if that time is exceeded, the Customer will be eligible for a credit equal to one day’s worth of the Base Fee paid by Customer for such month.
Measurement
FullCtl will periodically (on average every 1 minute) measure the FullCtl Switching Fabric at selected POPs using software and hardware components capable of measuring traffic and responses at such POPs. Customer acknowledges that not every POP may be covered by such measurements, that such measurements may not measure the exact path traversed by Customer’s packets, and that such measurements constitute measurements across the FullCtl Switching Fabric but no other networks to which Customer may connect. FullCtl reserves the right to periodically change the measurement points and methodologies it uses without notice to Customer.
FullCtl will use third party services to monitor Internet connectivity (on average every 1 minute) from external sources.
Exceptions
Customer shall not receive any credits under this SLA in connection with any failure or deficiency of the FullCtl Switching Fabric or datacenter caused by or associated with: Any circumstances beyond FullCtl’s reasonable control, in including, without limitation, as set forth in Section 11, any failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the FullCtl SLA; failure of access circuits to the FullCtl Switching Fabric (unless such failure is caused solely by FullCtl); Scheduled Maintenance and emergency maintenance and upgrades; DNS issues outside the direct control of FullCtl; false SLA breaches reported as a result of outages or errors of any FullCtl measurement system; or Customer’s acts or omissions (or act or omissions of others engaged or authorized by Customer), including without limitation, any negligence, willful misconduct, or use of the FullCtl Switching Fabric or Services in breach of this SLA, the FullCtl Term of Service or the Service Description.
Credit Card Request and Payment Procedures
Credit will be granted upon Customer request only. Credit requests must be provided to FullCtl in writing. Verbal requests will not be honored. Each request in connection with a Network Outage must be received by FullCtl within seven days of the Network Outage and must be confirmed by FullCtl’s measurements of the FullCtl Switching Fabric. FullCtl must receive each request in connection with Latency or Packet Loss or Response Time in a calendar month within seven days after the end of such month.
Each valid credit, as determined by FullCtl, will be applied to Customer’s invoice within two billing cycles after FullCtl’s receipt of Customer’s request. Credits are exclusive of any applicable taxes charged to Customer or collected by FullCtl.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE TOTAL AMOUNT CREDITED TO A CUSTOMER IN CONNECTION WITH NETWORK OUTAGE, LATENCY, PACKET LOSS AND/OR RESPONSE TIME IN ANY ONE CALENDAR MONTH WILL NOT EXCEED THE BASE FEE PAID BY CUSTOMER FOR SUCH MONTH. ANY CREDITS GRANTED ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO NETWORK OUTAGE, LATENCY, PACKET LOSS, RESPONSE TIME AND/OR ANY OTHER BREACH OR VIOLATION OF THIS SLA. FullCtl shall have no liability whatsoever to Customer or any third party for any failure to meet the service levels set forth in this SLA unless this SLA expressly provides that Customer shall be entitled to receive a credit as a result of such failure, and then only to the extent of such credit. Without limiting the foregoing, the failure of FullCtl to meet any service levels contained herein shall not be grounds for the cancellation or termination of the Service Description for cause.
Force Majeure
If either party is prevented, hindered, or delayed in the performance or observance of any of its obligations hereunder (excluding payment obligations) by reason of any circumstance beyond its reasonable control, including without limitation, acts of God, war, strikes, revolutions, acts or omissions of third parties hired by Customer or FullCtl, lack or failure of transportation facilities, laws or governmental regulations, failure of delivery or failure of third party performance, that party will be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and that party continues to use all commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
Updates to this SLA
FullCtl reserves the right, at its discretion, to change, modify, add, or remove portions of this SLA at any time upon written notice to Customer or by posting the revised SLA to the FullCtl website with an email notice to Customer. If Customer does not agree with any such changes, upon receipt of notice from FullCtl, Customer’s sole remedy is to exercise its termination rights pursuant to the first sentence of Section 5.2 of the FullCtl Term of Services. Any proposed amendment or change to this SLA made by Customer must be agreed to by Customer and FullCtl in writing.
These Terms of Service (the “Agreement” or “TOS”) apply to the Services FullCtl (“Vendor”) agrees to provide. The Agreement governs the rights and responsibilities between Vendor and the entity purchasing or using the Services (“Customer,” “You,” or “Your”). You agree to be bound by this Agreement regardless of the manner in which You have contracted with Vendor (whether electronically, in hard copy, or otherwise), and the parties agree that Your continued use of the Services, and Vendor’s continued provision of the Services, represent continued agreement to be bound by the Agreement. The “Effective Date” will be the date on which Vendor initially provisions Services to You or, if You are a continuing customer of Vendor, the date on which this Agreement is posted to Vendor’s website. This Agreement includes Vendor’s AUP, Privacy Policy, Service Descriptions, and any other documents that are incorporated into, attached to or specifically reference this TOS. Vendor reserves the right to update the TOS from time to time, and any updates shall take effect as of the date on which notice of such updates is emailed to customer.
Definitions
“FullCtl Switching Fabric” means the infrastructure operated by FullCtl consisting of private networks that facilitate traffic exchange between parties connected thereto for the location as specified in the Connection Agreement.
“Confidential Information” means any business, technical, financial or other information disclosed by one party to the other pursuant to this Agreement that is identified as confidential at the time of its disclosure. Confidential Information is the confidential information of and proprietary to the party disclosing the information. Without limiting the foregoing, FullCtl and Customer understand and agree that the material terms of this Agreement, and any functional limitations of, or errors in, the Services are FullCtl Confidential Information, and all data transmitted by Customer and stored within the FullCtl systems (if applicable) is the Confidential Information of Customer.
“Documentation” means the official user or operator documentation for the Software published by FullCtl, as may be updated from time to time by FullCtl. Such Documentation identifies the specific product features and functionality of the Software (and each component thereof).
“Error” means programming or other errors in the Software that prevent the Software from functioning in accordance with the Documentation or specifications.
“Error Category” means the severity class for Errors as further defined in this SMA.
“General Support” means technical support services, bug fixes, patches, security fixes, and other necessary fixes.
“Minor Issue” means work requested by Customer that requires less than 1 hour of work by Vendor.
“Minor Upgrade” means a functional enhancement, extension, or addition to the Software other than an Update requested by Customer that requires up to four hours of development work by Vendor.
“Major Upgrade” means a functional enhancement, extension, or addition to the Software other than an Update requested by Customer that requires over four hours and up to ten hours of development work by Vendor. Collectively, Minor Upgrades and Major Upgrades are referred to as “Upgrades.”
“Network Outage” means an instance in which no traffic can pass in or out of the selected point of presence (PoP) through which Customer connects to the FullCtl backbone for more than 15 consecutive minutes. Network Outages exclude Scheduled Maintenance and emergency maintenance, and any unavailability or outage resulting from a) issues with Customer’s applications, equipment or facilities; (b) any negligence or willful misconduct of Customer; (c) any entity or connection other than FullCtl; or (d) any force majeure as set forth in Section 13.
“Packet Loss” means the average percentage of IP packets transmitted between selected PoPs during a calendar month that are not successfully delivered, as measured by FullCtl.
“Scheduled Maintenance” refers to any upgrades or modifications to the FullCtl Switching Fabric, any FullCtl datacenter, or any software and services supported by FullCtl. Scheduled Maintenance may temporarily degrade the quality of service or include short interruptions of service. FullCtl will use commercially reasonable efforts to ensure that any interruption of service is kept to a minimum and performed between the hours of 12:00am & 5:00am (local time of the FullCtl POP to which Customer is connected). Except in the case of an emergency, FullCtl will use commercially reasonable efforts to provide the Customer with at least seven (7) days advance notice of any Scheduled Maintenance. FullCtl may undertake emergency maintenance (which may include a total interruption of service) at any time deemed necessary by FullCtl.
“Service Request” means any written or electronically written request for any Support Services by Customer.
“Severity” is a measure of the impact an Error, issue, or outage, as reported in a Service Request, has on the use of the Software, as reasonably determined by Customer based on the criteria set forth in subparts 1.13.1 through 1.13.4 below:
“Severity One” means Customer’s production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption; or (ii) Customer has had a substantial loss of service.
“Severity Two” means that major functionality is severely impaired such that: (i) operations can continue in a restricted fashion, although long-term productivity might be adversely affected and a temporary workaround is available; or (ii) a major milestone is at risk, ongoing and incremental installations are affected, and a temporary workaround is available.
“Severity Three” means a partial, non-critical loss of functionality of the software such that: (i) the operation of some component(s) is impaired but allows the user to continue using the Software; or (ii) initial installation milestones are at minimal risk.
“Severity Four” means general usage questions and cosmetic issues, including errors in the Documentation.
“Support Services” means General Support, Updates, Minor Upgrades, Major Upgrades, and Technical Support.
“Technical Support” means the provision of telephone or web-based technical assistance by Vendor to Customer’s technical contact(s) with respect to Service Requests.
“Term” means the Initial Term together with any applicable renewal period(s).
“Third Party Products” means any software or hardware that (i) is manufactured by a party other than Vendor and (ii) has not been incorporated into the Software by VendorMinor Issue.
“Update” means a modification, correction or addition to the Software or Documentation, including patches and technical updates to correct bugs, security issues, or other problems.
Services
The “Services” referred to in this Agreement are defined as the Services described on web pages or attached schedules describing the particular service that you have purchased from Vendor (each, a “Service Description”), as described on the Service Description on the Effective Date. Vendor shall have the right but not the obligation to modify the products and Services it offers from time to time. Should the Service Description change after the Effective Date, Vendor shall have no obligation to change the Services provided to You to reflect such a change.
Certain aspects of the Services may be provided by third parties (“Third-Party Services”), who may have reserved the right to make changes, including material changes, to the services that they provide. Vendor will use commercially-reasonable efforts to notify you of any such changes, and you may terminate this Agreement if such a change materially affects the Services.
Term
This Agreement will take effect on the Effective Date and continue for the term set out on the Service Description (the “Initial Term”). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (each, a “Renewal Term”). If the Service Description does not contain an Initial Term, the Initial Term shall be one month.
Termination
Either party may terminate the TOS by providing written notice to the other no later than thirty days before the expiration of the Initial Term or any Renewal Term.
Vendor reserves the right to terminate this TOS immediately, and to suspend or cancel the Services in the event of: (i) a violation of any of Vendor’s policies, including those incorporated by reference; and/or (ii) any failure to pay Fees when due. This right of termination is without prejudice to any other rights Vendor may have. You are not entitled to any type of notice or protest should Vendor exercise these rights.
A party may also terminate this TOS in the event of a material breach by the other party (the “Breaching Party”) that has not been cured by the Breaching Party within ten days of its receipt of written notice of the breach; provided that a material breach of Vendor’s obligations under this TOS is defined within Vendor’s Service Level Agreement. Notices of material breach must contain sufficient detail for Breaching Party to identify the breach and attempt to take corrective action.
Payment
You are responsible for the fees and charges set out on the Service Description, according to the terms set out on that page (Fees). The date on which Fees are due is the Due Date. If the Service Description does not set out a Due Date, the Fees will be due monthly. Set up fees are not refundable for any reason.
Vendor’s obligation to provide the Services is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is Customer’s responsibility to ensure that Vendor receives payment of the Fees. Fees will be considered paid on the date Customer’s financial institution makes funds available to us. Should your account be suspended for any reason other than Vendor’s breach of this Agreement, Fees will continue to accrue.
If we suspend or terminate your use of the Services because you have violated this TOS, or any of the agreements, policies or regulations incorporated into it, we will not provide you with a credit. Our Service Level Agreement does not apply to disruptions to your use of the Services because of such a violation. You agree to hold Vendor harmless from any claims that such a disruption has caused damage to you or a third party, regardless of whether you informed Vendor of the possibility of such damage.
If the Fees are not paid by your financial institution, your account will be considered delinquent. To reinstate your account if Services are suspended or canceled, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 1.5% per month, or the maximum amount allowed by law, whichever is less; (iii) collection charges, including attorney’s fees; and/or (iv) any fees levied on us by our financial institution.
You may choose to purchase certain Third-Party Services through us. Fees for the Third-Party Services may not appear on our invoices on the month on which they are delivered. You agree to pay for these Third-Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.
If you believe there is an error in invoice particular Fee, you must contact us in writing. Our obligation to consider your claim is contingent on your providing us with written notice of this dispute and including sufficient facts for us to investigate your claims. We must receive this notice at least five days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet the Dispute Deadline. If we find that your claim is valid, we agree to credit your account on your next invoice.
Licenses; Intellectual Property
Vendor grants to you a non-exclusive, non-transferable, worldwide, royalty-free license to use technology provided by Vendor, solely for the purpose of accessing and using the Services. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in Vendor’s technology shall remain with Vendor or its licensors, as applicable. You are not permitted to circumvent any devices designed to protect the ownership interests of Vendor or its licensors, as applicable, in the technology provided to you. In addition, you may not reverse engineer this technology.
You grant 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, your customers, in conjunction with the Services. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.
Use of the Services
Your use of the Services is governed by Vendor’s Acceptable Use Policy (“AUP”) and Privacy Policy, both of which are incorporated into this document by reference. In the event of inconsistencies between this TOS and the AUP, on the one hand, or the Privacy Policy, on the other, the AUP, then Privacy Policy shall govern, in that order. If you have selected Services that are subject to additional terms, a copy of such additional terms will be (or has been) provided to you and will also govern your use of the Services.
The Services are designed for lawful use only. It is your responsibility to fully understand and appreciate the laws of the United States of America and the state set out in the paragraph entitled “Choice of Law” when using the Services. You agree not to access or use, or permit any third party to access or use, the Services (i) in violation of any U.S. law or regulation, including customs and export regulations.
Your use of the Services must be reasonable. You may not place excessive burdens on Vendor’s CPUs, servers or other resources or interfere with the services Vendor provides to other customers. You may not use excessive bandwidth. You agree that Vendor may place restrictions on your use of the Services to the extent that they exceed the use of the Services by other, similarly-situated customers.
You agree to cooperate with Vendor to facilitate your use of the Services. This cooperation includes, but is not limited to, providing Vendor with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Services.
Upon termination or expiration of the TOS, your account will be closed. Vendor will have no responsibility to forward email or other communications for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications.
Representations and Warranties
You represent and warrant to Vendor that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide Vendor with material that may be implemented by Vendor to provide the Services without extra effort on Vendor’s part; and/or (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to Vendor, 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.
Disclaimers
ALL SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, VENDOR HAS NOT MADE, AND DOES NOT MAKE, ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. VENDOR’S DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND TITLE. VENDOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. VENDOR IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, THE CONTENT OF ANY DATA TRANSFERRED TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY US. VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THIRD-PARTY SERVICES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD-PARTY ENTITIES TO US SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD-PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM VENDOR, ITS EMPLOYEES, THIRD PARTIES, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW US TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.
Limitation of Liability
IN NO EVENT WILL VENDOR’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY VENDOR FROM YOU FOR THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, “VENDOR” SHALL BE INTERPRETED TO INCLUDE VENDOR’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH VENDOR.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD VENDOR 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 WE HAVE 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 OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You acknowledge that it is your responsibility to keep back-up copies of your data. We are not responsible for any loss of data, for any reason. We are not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our network.
Indemnity
You agree to indemnify, defend and hold harmless us and our parent, subsidiary and affiliated companies, third-party service providers 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 attorneys’ 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 the Services (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. 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.
Feedback
Any suggestion or idea for modifying any of Vendor’s products or services, including without limitation all intellectual property rights in any such suggestion or idea, shall be referred to in this Agreement as “Feedback.”
Customer hereby grants Vendor a perpetual, irrevocable, worldwide license to use any Feedback Customer communicates to Vendor during the Initial Term or any Renewal Term, without compensation, without any obligation to report on such use, and without any other restriction. Vendor’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses.
Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer provides to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer.
Notices
Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have You most current address.
Please refer to Vendor’s website for contact information for most issues, including technical support and billing. Notices regarding this TOS and other policies should be directed to Vendor at the address set out on the website.
Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
Choice of Law; Jurisdiction; Venue
The validity, interpretation, and performance of this TOS, and of the agreements and policies that apply to the Services, shall be controlled by and construed under the laws of the State of Illinois, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. You agree that jurisdiction and venue are proper in the state courts located in Chicago, Illinois, or the U.S. District Court for the District of Illinois located in Chicago. If neither of these courts has venue and/or jurisdiction, any dispute shall be brought before the state courts of Illinois. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
Waiver
No waiver of rights under this TOS, or any policy of ours, and no agreement between us and you shall constitute a subsequent waiver of this or any other right under this TOS.
Assignment
This TOS may be assigned by us. It may not be assigned by Customer. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
Severability
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this TOS shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this TOS is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this TOS by written notice to the other.
No Agency
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and neither party shall, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.