SMARTHOST LLC™ SERVICE AGREEMENT - REVISED JULY 1 2014
THIS AGREEMENT FOR SMARTHOST LLC™ (hereinafter referred to as the "SmartHost") services (hereinafter referred to as the "Agreement") is made and effective as of the date of acceptance, by and between you, (here-in-after referred to as "Client") and SmartHost, LLC, a Delaware Limited Liability Company (LLC).
WHEREAS, SmartHost LLC owns, distributes, and/or provides various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet, including the SmartHost, vePortal, and BaZONG! family of services.
WHEREAS, client desires to utilize the SmartHost LLC services to develop client's presence on the World Wide Web, connect to, and/or utilize the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. SmartHost Services. SmartHost agrees to provide to client services as set forth in Exhibit A (General Agreement).
2. Payment and Invoicing.
2.1 In consideration of the performance of the SmartHost services, Client shall pay SmartHost in advance the amount set forth in Exhibit E ("Contract Specifications"). Exhibit E is amended from time to time for the "SmartHost Services" provided during the term of this Agreement. Exhibit E may be populated on this document at the time of contract agreement, but is also inclusive of any service ordered/requested by the Client via the SmartHost billing/ordering system (also referred to as the "client interface") at the time of contract agreement or at a later date.
2.2 Client shall receive a confirmation letter/invoice via e-mail and/or mail at the time Client contracts for the SmartHost services, which shall confirm the fees payable to SmartHost. Thereafter, Client shall receive a monthly billing invoice/statement for the upcoming month, which shall indicate any changes in fees, which shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein. All services are invoiced 7 days in advance, and must be paid in full by the first day of new the service period. Client's with automated payment in place, may be debited at time of invoice generation. SmartHost systems may bypass, or automatically update, credit card expiration dates, fraud checking, and/or AVS/CVV verification. SmartHost is not liable for any overdraft fees on Client accounts, as a result of any SmartHost transaction.
2.3 Client is responsible for all activities and charges resulting from Client's use of the SmartHost services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by SmartHost in the event that Client's account is terminated by SmartHost or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the SmartHost Services until Client notifies SmartHost via telephone, e-mail, or support ticket (with account identifying information) and receiving a ticket tracking number as proof of contact.
2.4 Current rates for using SmartHost services may be obtained by telephone, email, support ticket, or by visiting the SmartHost website and/or billing/ordering system. SmartHost reserves the right to change fees, surcharges, monthly membership fees, and/or to institute new fees, at any time upon thirty (30) days' (of end of current contract/service term) prior notice to Client. In addition, SmartHost may institute special trial offers, from time to time, which shall be reflected in the confirmation letter sent to Client upon sign up.
2.5 Late Fees. If SmartHost does not receive the full amount of Client's SmartHost service account balance by the first day of a new service period, an additional 1.5% (or highest amount allowed by law per month) late charge will be added to Client's bill and shall be due and payable. Client shall also be liable for all attorney and collection fees arising from SmartHost's efforts to collect any unpaid balance of Client's account(s). Account suspension may occur if payment is not received by 5th day of a new service period. Account termination may occur if payment is not received by 7th day of a new service period.
2.6 Penalties and Extra Fees. Client agrees to pay SmartHost US$35.00, per occurrence, for bounced checks. Client agrees to pay SmartHost US$35.00, per occurrence, for each chargeback issued against a transaction. Client agrees to pay SmartHost US$35.00, per occurrence, for each credit reporting/collection agency filing that may be necessary to expedite receipt of payment, collect on overdue funds, or other related issues. Client agrees to re-imburse SmartHost for all legal/court fees optained while attempting to collect client's debt. Client agrees to pay SmartHost US$50.00 for each re-activation of a suspended account. The US$50.00 re-activation fee is per account, with an account potentially containing multiple websites, servers, or other services. Client agrees to pay SmartHost US$25.00 for violations of the "Abusive Clientele" policy. Client agrees to pay SmartHost US$100.00 for each blacklisting occurrence due to Client activities. Client agrees to pay SmartHost US$50.00 for each DMCA violation occurrence that is not properly and successfully defended. Client agrees to pay SmartHost US$9.95 for recreation of a VPS or US$25.00 to rebuild a dedicated server after cancellation, as a service restoration fee. SmartHost reserves the right to charge a US$25.00 expedite fee for any support issue that client insists be taken care of "on the spot" immediately. Charges may be incurred for Abnormal Support requests serviced on your account.
2.7 Reseller / End-User Relationship. All SmartHost clientele, regardless of Authorized Reseller status, are responsible for all debts incurred on their account, regardless if service was resold and/or utilized by another party (end-user), and regardless of whether such a party paid the SmartHost direct client for said service. Any contract is with the SmartHost direct client, and not with the end-user of the SmartHost service, unless they are one and the same. In the event that an Authorized SmartHost Reseller defaults on payment on their account, or an end-user of resold service brings a justifiable claim that an Authorized SmartHost Reseller is not providing a reasonable level of service or acting in a manner unbecoming of an Authorized SmartHost Reseller, SmartHost shall have the right to permit the end-user(s) to contract/transfer service directly with SmartHost, and no satisfaction or payment will be due to the Authorized SmartHost Reseller if such occurs.
3. Responsibilities, Rights and Status of SmartHost.
3.1 Means of Performance. SmartHost shall provide Client with the SmartHost services, as set forth on Exhibit A hereto. SmartHost has the right to control and direct the means, manner, and method by which the services are performed. SmartHost shall perform the services in a professional manner.
3.2 Support. SmartHost shall provide a reasonable level of technical support to Client via email, fax, instant messenging, real-time chat, forums, and/or online manuals/FAQ for the term of this Agreement. Some methods of contact may only be available to certain service levels contracted for, such as Fully Managed support.
3.3 Other Work. SmartHost has the right to perform and license products to others during the term of this Agreement. SmartHost may elect to electronically monitor the services and may disclose any content or records to satisfy any law, regulation, or other governmental request, or to properly operate services and protect its Clients. SmartHost reserves the right to block any site/account hosted by SmartHost that contains/transfers any content that it deems in its sole discretion to be unacceptable or undesirable.
4. Responsibilities and Rights of Client.
4.1. Client Liaison. Client shall designate a contact person who shall act as a liaison between Client and SmartHost. Client certifies to SmartHost that he/she is not a minor. A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision. Client agrees to provide SmartHost with accurate, complete and updated information required by the registration/initiation of the SmartHost service (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data ( e.g., credit card number and expiration date ). Client agrees to notify SmartHost within thirty (30) days of any changes in Client Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use SmartHost Services. SmartHost is authorized by Client to add Client's email addresses to SmartHost internal mailing lists, both service and marketing related, and desires to receive such contact from SmartHost, unless notifying SmartHost otherwise, or by unsubscribing to such.
4.2 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided SmartHost services. Such costs include, but are not limited to, the fees required to register a domain name at an external Registrar, which is governed by a separate agreement between Client and the Registrar.
4.3 Third-Party Software. Third-Party software available through the SmartHost service may be governed by separate end user licenses. By using SmartHost services and the thirdparty software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software.
4.4 Management of Content. Client shall be solely responsible for all content available/stored on or through their service, and shall at all times be subject to the terms of this Agreement, SmartHost's then-standard Acceptable Usage Policy (AUP), SmartHost Terms of Service (TOS), and any generally applicable guidelines and service standards published by SmartHost. Client warrants that its content hosted on the SmartHost network (I) will conform to the SmartHost Terms of Service (TOS) attached hereto as Exhibit B; (II) will conform to the SmartHost Acceptable Usage Policy (AUP) attached hereto as Exhibit D; (III) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (IV) will not contain any content which violates any applicable law, rule or regulation. SmartHost shall have no obligations with respect to the content available/stored on or through any service on the SmartHost network, including, but not limited to, any duty to review or monitor any such content. SmartHost reserves the right to block any site that violates any of the above-stated terms, or which in SmartHost's sole discretion, SmartHost deems objectionable or offensive, or otherwise violates a law and/or SmartHost policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.5 Service Level Agreement (SLA). SmartHost is required maintain a Service Level Agreement (SLA) to guarantee network/equipment reliability and performance. The SmartHost Service Level Agreement (SLA) is set forth in Exhibit C. SmartHost reserves the right to change or modify this SLA to benefit the Client, and will post changes to online location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, SmartHost makes no claims regarding the availability or performance of the SmartHost network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific details of the "Contract Specification" section of this agreement. In case of difference terms/points in SLA and "Contract Specification", the "Contract Specification" terms/points prevail over this general SLA policy. The "Contract Specification" signed/agreed by client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.
4.6 Co-Location Equipment. Client is responsible for providing insurance coverage for all co-located equipment in SmartHost facilities and/or all customer property not supplied and maintained by SmartHost in a SmartHost facility or at the customer's premise. SmartHost is not responsible for such equipment, but is required to provide a reasonable amount of protection for equipment, including, but not limited to; alarm systems, surge protection, security cameras, video recordings, monitoring, theft prevention, racking equipment, and weather control. In the event of non-payment of SmartHost services, SmartHost has the right to withhold Client equipment, and not be required to release it to Client until Client debt is fully satisfied. In the event of non-payment of SmartHost services resulting in service termination, Client will have a period of 60 days to rectify payment issues, after which time, if not fully rectified, Client forfeits ownership rights to all related equipment on the service, and said equipment will be deemed abandoned. Upon forfeit/abandonment of property, SmartHost will dispose of the equipment, and no payment/credit will be due Client.
5. Confidentiality and Proprietary Rights.
5.1 Confidentiality. Both parties acknowledge that: (I) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others; (II) in the performance of the SmartHost services, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party's business affairs, finances, properties, methods of operation and other data (here-in-after collectively referred to as ("Confidential Information"), and; (IV) unauthorized disclosure of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.
5.2 Non-Disclosure. Both parties agree that, except as directed by the other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party, or that come into the party's possession or under the party's control that relates to Confidential Information; and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party's possession or under such party's control that contain or relates to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential. Confidential Information shall not include information that: (I) is already lawfully known to or independently developed by the receiving party; (II) is in the public domain through no fault of the receiving party; (III) is lawfully obtained from a third party without restrictions; or (IV) is required to be disclosed by law, regulation or governmental order.
5.3 Injunctive Relief. Both parties acknowledge that disclosure of any Confidential Information by the other party will give rise to irreparable injury to the owner of such information, inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
5.4 Proprietary Rights. Unless otherwise specified, all work performed hereunder, is the property of SmartHost and all title and interest therein shall vest in SmartHost; provided however, that any content or materials supplied by Client shall remain the property of Client and its suppliers. To the extent that title to any such works may not, by operation of law, vest in SmartHost, all rights, title and interest therein are hereby irrevocably assigned to SmartHost. All such materials shall belong exclusively to SmartHost, and SmartHost shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give SmartHost and any person designated by SmartHost such reasonable assistance, at SmartHost's expense, as is required to perfect the rights defined in this paragraph.
5.5 Non-Compete. Neither Client, nor SmartHost, may at any time during contract term, and one year following termination of this contract, knowingly provide similar service to current customers of the other party. "Current customers" is defined in this case as; any party having been a client within the past 12 months of the current date, regardless of whether client is currently still utilizing such services. A signed waiver on a case by case basis is required, should both parties agree to make an exception. Both parties are required to notify each other should a customer attempt to switch service to the other party. In event of a breach of this clause, the parties agree that damages in the amount of 24 months (2x revenue) should be paid. If Client fails to pay SmartHost for services rendered, or Client's services are suspended/cancelled according to appropriate policy, SmartHost retains the right to accept Client's customers directly as SmartHost clientele. SmartHost will take reasonable action to re-activate/re-instate Client's service prior to such measures being taken, but such action may be necessary to protect the best interest's of the end-user of the SmartHost services, as well as the reputation of SmartHost itself.
5.6 Non-Solicitation. Neither party should knowingly solicit for employment, offer employment to, or employ any of the other party's employees/staff during contract term, and one year following termination of this contract. In event of a breach of this clause, the parties agree that damages in the amount of 12 months (1x annual salary) current salary for the individual (s) should be paid.
5.7 Marketing Rights. Client agrees that SmartHost may refer to Client, and/or Client's business/company, in SmartHost marketing materials, the SmartHost website, and communication to SmartHost current/potential clientele. Client grants SmartHost a limited license and permission to use any Client trade name and/or trademark for such, and only for such purposes, unless Client notifies SmartHost otherwise. SmartHost clientele, including SmartHost Authorized Resellers, are granted permission to utilize/copy any SmartHost advertising/promotional material, and any content from SmartHost websites, in order to promote the usage/resale of the SmartHost service specifically, as long as the client remains a SmartHost client with atleast one active SmartHost service on their account.
6.1 Warranty. Client understands that except for information, products, or services clearly identified as being supplied by SmartHost, neither SmartHost, nor any of its affiliates, operates or controls any information, products, or services on the Internet in any way, and that, except for such SmartHost identified information, services or products, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with SmartHost or its affiliates. The terms and conditions for the use of 3rd party software/services provided by SmartHost, are governed by the terms of each product's end-user license. ALL SOFTWARE MADE AVAILABLE IN CONJUNCTION WITH THE SMARTHOST SERVICES ARE PROVIDED ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SMARTHOST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SMARTHOST SERVICES; INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND THAT PORTIONS OF THE INTERNET CONTAIN MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT AND MAY BE OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. SMARTHOST HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY SMARTHOST, ITS EMPLOYEES, LICENSERS, OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL SMARTHOST OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE SMARTHOST SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SMARTHOST SERVICES AND/OR SMARTHOST SOFTWARE, INCLUDING BUT NOT LIMITED TO reliance on any information obtained, or stored, on the SmartHost network; or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to SmartHost records, programs, or services. SmartHost is not liable for damage caused by lightning strikes and/or power surges to customer premise equipment, co-located equipment, or customer property connected to such. Client should take proper precations to protect their property from damage by such. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, IN SUCH STATES, SMARTHOST'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.2 Indemnity. Each party will indemnify the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees resulting from the indemnifying party's material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or willful misconduct of the other party. Such indemnity shall be conditional upon (I) prompt notification to the other party of any indemnifiable claim; (II) the indemnifying party's control of all settlement and other negotiations; and (III) the indemnified party's full cooperation with respect to such claim.
6.3 Limitation of Liability. SmartHost shall not be liable to Client for more than the aggregate amounts paid to SmartHost under this Agreement, for the current service term.
6.4 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.
7. Terms and Termination .
7.1 Term. This Agreement will become effective on the date indicated in the "Contract Specification" section of this Agreement, or the date of initial service order placed, whichever earliest, and will remain in effect for the term indicated in same. This agreement is automatically renewed for same originating term as indicated in the "Contract Specification" section of this agreement, or term selected thru online ordering system, at the end of current term, unless Client terminates this Agreement (via fax, mail, or online cancellation form) to SmartHost within twenty-four (24) hours prior or following end of current service term, or SmartHost terminates this Agreement upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term.
7.2 Termination. In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement, by giving ten (10) days prior notice thereof (in writing by fax or mail); provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said ten (10) days.
7.3 Client may terminate this Agreement at any time for any or no reason upon written notice (via fax, mail, or online cancellation form) to SmartHost, within twenty-four (24) hours prior or following end of current service term. SmartHost may terminate this Agreement at any time for any or no reason upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term. Notwithstanding the foregoing, SmartHost may immediately block Client's site or immediately terminate Client's access to and use of SmartHost services and software; if at SmartHost's sole discretion, it deems any information contained in Client's site to violate SmartHost's Terms of Service (TOS), SmartHost's Acceptable Usage Policy (AUP), or to be otherwise objectionable or offensive or to violate the law, in accordance with Section 4.5 herein. Client's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of SmartHost in operating the SmartHost service, any change in the content of the SmartHost service, or any change in the amount or type of fees charged in connection with the SmartHost service, is to terminate this Agreement by delivering notice to SmartHost, effective the day SmartHost receives notification of termination or any future date specified which is acceptable to SmartHost. SmartHost may terminate immediately any Client who misuses or fails to abide by this Agreement, SmartHost's Terms of Service (TOS), or SmartHost's Acceptable Usage Policy (AUP) SmartHost may terminate without notice Client's access to and use of the SmartHost service and software upon a breach of this Agreement. If SmartHost denies you access to the SmartHost services, you shall have no right to obtain any credit(s) otherwise due to you. SmartHost shall have no responsibility to notify third-party providers/users of services, merchandise, or information, associated with your SmartHost service, nor shall SmartHost have any responsibility for any damages that result from the lack of such notification.
7.4 In the event that SmartHost offers a money back guarantee, or 30 day refund policy, as specified in the "Contract Specifications" section of this agreement, violation of the SmartHost Terms of Service (TOS) or SmartHost Acceptable Usage Policy (AUP) makes such an offer null and void. Client agrees to waive such rights to a refund if such a violation occurs. SmartHost does not offer a money back guarantee, or 30 day refund policy, by default on it's service, unless specifically stated otherwise for a specific service.
7.5 Surviving Sections. The following paragraphs shall survive the termination of the Agreement: 5 ("Confidentiality and Proprietary Rights"), 6 ("Warranties/Indemnity") and 8 ("General").
8.1 Assignment. Only SmartHost, at its option, and not the Client, may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment by the Client shall be void. This Agreement shall be binding upon the parties' respective successors, purchasers, and permitted assigns.
8.2 Notices. Any notices or legal communication under this Agreement shall be in writing (via fax or mail) and shall be deemed delivered to the party receiving such communication at the address specified below (I) on the delivery date if delivered personally to the party, or a representative of the party; (II) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (III) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (IV) on the delivery date if transmitted by confirmed facsimile.
If to SmartHost:
SmartHost, LLC - P.O. Box #530507 Henderson, NV 89053-0507 USA
If to Client:
Contact information provided in "Contract Specification" section of this Agreement, on provided to SmartHost in the SmartHost client interface.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, United States, except with regard to it's conflict of law rules.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of the Agreement or any of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Neither party hereto shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for forty-eight (48) hours, the other party may terminate this Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.9 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which is different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
General Terms of Service (TOS)
1. SmartHost services, as operated by SmartHost, is a collection of various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet. SmartHost services are available for a fee to any client who wishes to utilize the service for such means.
2. CAREFULLY READ the terms of this agreement which governs your use of SmartHost services and software. SmartHost may modify this agreement at any time and in any manner. Any modification is effective immediately upon either a facsimile, electronic mail, or conventional mail notification. Any modification is effective at the start of the next service term (renewal period) if notified via SmartHost online forums and/or publication to the SmartHost website(s). Your continued use of SmartHost service following notice of any modification to this agreement shall be conclusively deemed as acceptance of all such modification(s).
3. SmartHost grants to you a non-exclusive, non-transferable license to use and display the SmartHost service and software on the servers and equipment with which you utilize the SmartHost service. The SmartHost service and software are owned by SmartHost and their structure and organization constitute valuable trade secrets of SmartHost.
4. Advertising, Solicitation and Name Harvesting. You may not use SmartHost service to send unsolicited advertising, promotional material, or other forms of solicitation to other Clients unless you receive the expressed written permission of the Client. You may not use the SmartHost service to collect or "harvest" screen names of other Clients without the expressed prior permission of the Client. SmartHost reserves the right to block or filter mass email solicitations on or through the SmartHost service. The vast majority of newsgroups and mailing lists on the Internet are not commercial in nature, and participants in such groups may object strongly to commercial postings, solicitations, or advertisements.
5. Internet Conduct. Generally, the Internet consists of the following areas available through SmartHost; Email, Newsgroups, Instant Messaging, Video, and the World Wide Web). The Internet is not owned or operated by, or in any way affiliated with SmartHost or any of its affiliates; it is a separate, independent network of computers and is not part of SmartHost. Your use of the Internet is solely at your own risk. When using the Internet and all of its components, Clients must conduct themselves responsibly according to the Internet's own particular code of conduct. Participating successfully on the Internet is really a matter of common sense. Although SmartHost does not control the Internet, your conduct on the Internet when using your SmartHost account is subject to SmartHost rules. Because SmartHost wants to be a good Internet citizen, it prohibits Clients from engaging in certain conduct on the Internet through or by means of SmartHost including the following: (1) Chain Letters. Chain letters are prohibited on the SmartHost network and are inappropriate on the Internet. Posting a chain letter to an Internet newsgroup (or via email on the Internet) from your site may result in your SmartHost services site being terminated.
6. Other Inappropriate Posts. Each newsgroup and mailing list on the Internet focuses on a particular set of topics and posts not related to these topics are not welcomed by the participants. We suggest that all Clients become familiar with the guidelines, themes, and culture of the specific newsgroups and mailing lists in which they wish to participate. Posting or distributing inappropriate material on or from your site (i.e. spamming or mail bombing) may result in suspension or termination of your SmartHost account.
7. Copyright and Proprietary Materials. You should be aware that much of the Content available on the Internet is protected by copyright, trademarks, trade secrets and other rights of the independent third parties or their licensers who make such content available on the Internet. Clients use of such Content will be subject to the specific restrictions place on such Content by the owners or licensors of the Rights in such Content and all applicable laws and regulations. Transmitting to the Internet or posting on your site copyright or other material of any kind which is subject to rights of any person or entity without the express permission of the right's holder is prohibited and will result in termination of your SmartHost Service and possible civil and /or criminal liability.
8. Offensive or Objectionable Material. SmartHost reserves the right to request you remove any material which SmartHost deems offensive, hurtful, or otherwise objectionable. Failure to do so may result in blocking your SmartHost service(s) or termination of the Agreement by SmartHost. You understand that except for content, products or services expressly available at SmartHost's Web site, neither SmartHost, nor any of its affiliates, controls, provides, operates, or is responsible for any content, goods, or services available on the Internet. All such content, goods, and services are made accessible on the Internet by independent third parties and are not part of SmartHost or controlled by SmartHost. SmartHost neither endorses nor is responsible for the accuracy or reliability of such content, goods, or services available on the Internet, which are the sole responsibility of such independent third parties, and your use thereof is solely at your own risk. Neither SmartHost nor its affiliates shall be held responsible or liable, directly, or indirectly, for any loss or damage caused or alleged to have been caused by your use of or reliance on any content, goods or services available on the Internet or your inability to access the Internet or any site on the Internet. The foregoing provisions o this paragraph shall apply with equal force even where SmartHost features or displays a link with any particular Web site. You should be aware that the Internet contains content, goods, and services that you may find obscene, improper, hurtful, or otherwise offensive and that may not be suitable for certain individuals or for minors who are accessing the Internet. SmartHost does not have the capability or right to monitor, or review, or restrict any content, goods, or services made available by third parties on the Internet, nor to edit or remove any such questionable content after posting on the Internet. In addition, you should be aware that the Internet provides access to users who are not part of SmartHost and whose conduct and communication may also be found harmful or offensive to clients or which would otherwise breach the SmartHost rules if they were subject to it. SmartHost and its affiliates specifically disclaim any responsibility for (and under no circumstances be liable for) any conduct, content, goods , and services available on or through the Internet (including without limitation any part of the Web). Your use of the Internet is subject to all applicable local, state, national, and international laws and regulations, Without limiting the other rights available to SmartHost, SmartHost retains the right but not the obligation, in its sole discretion and without prior notice or liability, to restrict and/or terminate your access to the Internet and SmartHost services, if your use of the Internet violates any such laws or regulations, any prohibitions upon your conduct in connection with the Internet raised in this paragraph or otherwise restricts or inhibits any other user from enjoying the Internet or their SmartHost services.
Service Level Agreement (SLA)
SmartHost is proud to offer an exceptional level of performance, reliability, and service. That is why we are making commitments to our customers in the form of a Service Level Agreement (SLA) which provides certain rights and remedies regarding the performance of the SmartHost network. The SmartHost Service Level Agreement (SLA) guarantees our network/equipment reliability and performance. This Service Level Agreement (SLA) applies to customers of SmartHost's web hosting, reseller, dedicated server, co-location, ecommerce, and Internet access services. Uptime Guarantee: SmartHost strives to maintain a 99.999% network and service uptime level, and guarantees atleast 99.9%. This uptime percentage is a monthly figure, and is is calculated solely by SmartHost monitoring systems or SmartHost authorized/contracted outside monitoring services. If SmartHost fails to meet it's 99.8% uptime guarantee, and it is not due to one of the exceptions below, credits will be made available to each client, upon request, on a case by case basis. SmartHost does not credit a full month's service for minor downtime. This would not be financially healthy for SmartHost, and in turn would only negatively affect the service level SmartHost provides to you. "Partial refunds for partial downtime" is our standard policy. In extreme circumstances, SmartHost may distribute full month credits, but this is dealt with on a case by case basis. Details on how credit amounts are calculated can be found below. Exceptions: Customer shall not receive any credits under this SLA in connection with any failure or deficiency of the SmartHost network caused by or associated with:
- Circumstances beyond reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, "Acts of God" (ie...fire, flood, earthquake, tornado, etc...), strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service Level Agreement.
- Telco Failure (ie...a backhoe cutting a fiber line somewhere).
- Backbone peering point issues (ie...Level3™ having a router go down in Virginia that wipes out Internet service a portion of the entire East Coast).
- Scheduled maintenance for hardware/software upgrades.
- Hardware failure (faulty hardware is rare, but cannot be predicted nor avoided). SmartHost utilizes only name brand hardware of the highest quality and performance.
- Software bugs/flaws (Exploits and bugs may develop that cause security issues or downtime).
- DNS issues not within the direct control of SmartHost.
- Network floods, hacks, attacks from outside parties or individuals.
- Failure or error of any SmartHost monitoring or measurement system.
- Weather which may affect perfomance of wireless access equipment performance.
- Client's acts or omissions, including without limitation, any negligence, willful misconduct, or use of SmartHost service(s) in breach of the SmartHost Acceptable Usage Policy (AUP), by Client or others authorized by Client.
Connectivity: SmartHost's goal is to make the SmartHost network available to Clients, free of outages, as best possible. An "outage" is defined as an instance in which Client is unable to transmit and receive IP packets due to a SmartHost service failure for more than 15 consecutive minutes, excluding service failures relating to SmartHost's scheduled maintenance and upgrades. The SmartHost network does not include client premises equipment or any Telco access facilities connecting Client's premises to such infrastructure. SmartHost's goal is to keep Average Round-Trip Latency on the SmartHost network to 85 milliseconds or less. SmartHost defines "Average Round-Trip Latency", with respect to a given month, as the average time required for round-trip packet transfers between the SmartHost network and major US backbone peering points during such month, as measured by SmartHost. SmartHost's goal is to keep Average Packet Loss on the SmartHost network to 1% or less. SmartHost defines "Average Packet Loss", with respect to a given month, as the average percentage of IP packets transmitted on the SmartHost network during such month that are not successfully delivered, as measured by SmartHost.
Measurement: SmartHost will periodically (on average every 5 minutes) monitor SmartHost network and server availability using software and hardware components capable of measuring application traffic and responses. Client acknowledges that that such measurements may not measure the exact path traversed by Client's Internet connection, and that such measurements constitute measurements across the SmartHost network but not other networks to which Client may connect. SmartHost reserves the right to periodically change the measurement points and methodologies it uses without notice to Client. Full network and server reporting will be posted to a location designated by SmartHost and made available to Client.
Hardware Failure: SmartHost stands behind all equipment on our network. Faulty hardware is rare, but cannot be predicted nor avoided. SmartHost utilizes only name brand hardware of the highest quality and perfomance. SmartHost will replace all faulty hardware affecting performance levels of equipment within 48 hours, which includes hardware issues that cause server crashes or speed issues. Hardware failure resulting in complete network/server outage/downtime will be corrected within two hours of problem identification. Router failure is an exception to this SLA guarantee, and may require on-site Cisco™ engineers or backbone provider emergency personnel to correct the problem. Router failure is governed by current SmartHost contracts with Cisco™ and backbone providers in regard to the emergency repair service in case of such an issue. Software re-installation and data replacement after server failure, will be completed with 10 hours of of problem identification. SmartHost will replace all faulty hardware on dedicated servers (rented or leased servers), at no charge to the Client, with an unlimited free replacement policy. This includes parts ordered as upgrades. SmartHost will replace all faulty hardware on all non-purchased dedicated and premise equipment, at no charge to the Client, unless equipment has been tampered with, or damage is caused by direct neglect/action(s) of Client.
Credits: Credit requests must be made on the SmartHost web site, by filling out the "Service Level Agreement (SLA) Request" form. Each request in connection with network/server outages/downtime must be received by SmartHost within five days of the occurrence. Each request in connection with Average Round-Trip Latency or Average Packet Loss in a calendar month must be received by SmartHost within five days after the end of such month. The total amount credited to a Client for SmartHost not meeting SLA service levels will not exceed the service fees paid by Client SmartHost for such services for the period in question. Each validly requested credit will be applied to a Client invoice within 30 days after SmartHost's receipt of such request. Credits are exclusive of any applicable taxes charged to Client or collected by SmartHost. Upon Client's request (in accordance with the procedure set forth below), SmartHost will issue a credit to Client for network/server outages/downtime occurring during any calendar month that are reported by Client to SmartHost and confirmed by SmartHost's measurement reporting. Such credit will be equal to one day's worth (1/30th) of the monthly fees paid by Client, (for all service fees paid if network outage, or specific affected service fees paid if individual server downtime) multiplied by each hour (or portion thereof rounded to nearest next hour) of the cumulative duration of such outage/downtime. If Average Round-Trip Latency on the SmartHost network for a calendar month exceeds 85 milliseconds, then upon Client's request, SmartHost will issue a credit to Client equal to six day's worth (1/5th) of the monthly service fees paid by Client for such month. If Average Packet Loss exceeds 1% during a calendar month, then upon Client's request, SmartHost will issue a credit to Client equal to five day's worth (1/5th) of the monthly service fees paid by Client for such month.
General: SmartHost reserves the right to change or modify this SLA to benefit the Client, and will post changes to location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, SmartHost makes no claims regarding the availability or performance of the SmartHost network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific Service Agreement signed/agreed by client. In case of difference terms/points in SLA and Service Agreement, the Service Agreement terms/points prevail over this general SLA policy. The Service Agreement signed/agree client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.
SMARTHOST BASIC POLICY & SERVICE GUIDELINES (AUP)
Please see https://www.smarthost.net/acceptable-usage-policy.php
EXHIBIT E - CONTRACT SPECIFICATIONS
As selected during online ordering process, unless stated otherwise manually here within.
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