Terms of Service (“TOS”)
The TOS governs your purchase and use, in any manner, of all Services, ordered by you and accepted by Future Hosting and describes the terms and conditions that apply to such purchase and use of the Services. Under the terms of this MSA, your placement of information on our servers is an acknowledgement that you have read, understand, and agree to abide by the terms and conditions set forth below.
As used in the MSA, capitalized terms shall have the meaning ascribed to them, or as indicated below:
1.1. “Company Network”– The telecommunications network and network components owned, operated, used, or controlled by Company, including, but not limited to, Company’s fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by Company to provide the Services. Where Company services a building through its own facilities, the Company Network includes those facilities. The Company Network does not include customer premises equipment, customer-ordered telephone circuits, and any networks or network equipment not operated and controlled by Company.
1.2. “Controller” – as defined in the GDPR.
1.3. “Customer End User”– A third party which is an end user of services provided by Customer.
1.4. “Customer Portal”– Portal located at https://my.futurehosting.com/.
1.5. “GDPR” –Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
1.6. “Losses”– Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.
1.7. “Personal Data” – as defined in the GDPR.
1.8. “Processor” – as defined in the GDPR.
1.9. “Service Date”– The earlier of date on which (a) Company deems that the Service is or will be available for Customer’s use; or (b) Customer first uses the Service or the Company Network.
1.10. “Shared Service(s)”– Only those services offered by Company for sale to the general public where the virtual or dedicated server computer is used by more than one (1) client of Company at any given time.
1.11. “Tax”or “Taxes”– All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on Company or for which Company is permitted to invoice Customer in connection with Company’s performance under this MSA. Taxes do not include Company’s income taxes.
1.12. “Work Order Form” – The form or forms or Statement of Work entered into between the Parties by separate agreement, identifying the specific Service(s) to be delivered.
- SERVICES AND TERMS
2.1. The Company will provide the Services to Customer for the service charges specified when Customer enrolls for the Services on Company’s website or executes a Work Order Form, which will be subject to the terms and conditions of the MSA.
2.2. Customer will be deemed to have accepted the Service as of the Service Date.
2.3. If agreed upon by Company, the Customer may order additional Services which will be subject to the terms and conditions of the MSA. Customer’s account must be current in order to make changes to Services or order additional Services.
2.4. Managed services cover basic management services including installation of some third-party items such as: ImageMagick, Fantastico, Urchin, GD Library, etc. Installation of server needed components such as PHP recompiles, Perl modules, etc. While most requests are covered under the managed VPA package, some requests would be billed at an administrative fee of thirty dollars ($30.00) per hour. In the event of any billable work, Customer will be notified via ticket prior to commencement of work.
2.5. Unmanaged plans are eligible for hardware and network related support only. Tickets submitted for other requests will result in a fee of thirty dollars ($30.00) per hour. Customer will be advised of any fee that may be incurred prior to work being completed on Customer’s behalf.
- SERVICE FEES AND BILLING
3.1. Service Fees –Fees for Services ordered by the Customer shall begin on the initial order and that date shall serve as the anniversary date (“Anniversary Billing Date”) for all future billings including one-time fees, upgrades, additional services, cancellations and service credits. Invoices are sent monthly in advance. Fees are due in advance of monthly service cycle without counterclaim, set-off or deduction and will be billed on the Anniversary Billing Date of each month. A late charge shall be added to Customer’s past due balance of the lesser of 1.5% per month or the maximum legal rate.
3.2. Hourly Service Fees –For any services offered by Future Hosting on an hourly basis (“Hourly Services”), Customer shall specify the period of time for which the Hourly Services are requested. The minimum period of time for which Hourly Services may be requested is one (1) hour and Customer will be billed in full hour increments, and no breakdown by minutes shall be permitted. Unless otherwise specifically stated in the MSA, if Customer requests Hourly Services Customer agrees to be bound by the terms and conditions in this MSA including, but not limited to, the TOS and the AUP. Hourly Services will be billed on Customer’s Anniversary Billing Date (as set forth and defined in paragraph 3.1 above).
3.3. Additional Service Fees –Additional services may result in additional fees/charges. Additional services, not including Hourly Services, ordered on the Anniversary Billing Date will be billed for the full month service and will continue each month on the Anniversary Billing Date. Additional services ordered after Customer’s Anniversary Billing Date will be pro-rated to the Anniversary Billing Date in the next calendar month and billed as a one-time pro-rata charge. Future charges will appear as full monthly fees added to Customer’s existing Anniversary Billing Date.
3.4. One-Time Fees –One-time fees, such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Future Hosting’ approval. One-time fees, such as bandwidth overages are due and payable upon an invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Future Hosting’ approval. Bandwidth overages may be billed prior to the end of the billing cycle and the applicable Service may be suspended in the event that Customer’s overage exceeds ten percent (10%) of Customer’s monthly allotment unless otherwise approved in writing by Company.
Company may change the specifications, provisions, and/or charges for the Service for the Term by providing Customer at least sixty (60) days advance notice. Customer agrees that its obligation to pay the service charges and Taxes shall survive the termination of the Services.
Service fees do not include applicable Taxes unless so indicated. Customer is responsible for paying all foreign, federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to any services, other than those taxes based on Future Hosting’ net income. Customers claiming a tax exemption must provide Company with a properly executed exemption form.
3.5. Service Credits –SLA Credits (as defined in the SLA) will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer, have no cash value and the service credits shall not be transferable to other account holders. SLA credits shall expire if Customer’s account is fully terminated.
3.6. Refunds & Disputes – All services rendered by Company are non–refundable. This includes, but is not limited to, setup fees, one-time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors are instructed to open an accounting ticket inside the Customer Portal. Customer agrees not to chargeback or dispute any credit card or PayPal payments for services rendered by Company and Customer agrees to be liable for any and all applicable fees incurred by Company during the investigation of a chargeback. Any dispute or chargeback filed by Customer that is not successful may result in immediate service termination at Company’s sole discretion. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Company in enforcing collection.
3.7. Non-Payment –All payments are due in full on the Anniversary Billing Date. Failure to remit payment for services on the Anniversary Billing Date is a violation of the TOS. Failure to remit payment on the Anniversary Billing Date may result in a suspension of the Services. Failure to remit payment for Services within three (3) consecutive days, including the Anniversary Billing Date, shall result in termination of access to the Services and all Services may be reclaimed at the Company’s sole discretion. A late fee of twenty dollar (“$20.00”) will be incurred for failure to remit payment for Services on or before the monthly Anniversary Billing Date. A fifty dollar ($50.00) reconnect fee will be incurred for failure to remit payment for Services after access has been disconnected. All Customer data remaining after three (“3”) days of non-payment will be destroyed for security and privacy reasons, unless otherwise required by law. Any Customer owned equipment (colocation) shall become the property of Future Hosting in the event of non-payment.
- SERVICE USE
4.1. Customer’s use of Services is subject to the AUP which is incorporated into the MSA. Customer’s use of the Services may only be for lawful purposes, and Customer shall at all times comply with applicable laws. Transmission of any material in violation of any law or regulation is strictly prohibited. Access to other networks connected to Company’s Network must comply with such other networks’ rules. Further, by accepting the MSA, Customer agrees to use Future Hosting’ services solely for their intended purposes. CUSTOMER SPECIFICALLY AGREES NOT TO TAMPER WITH, MAKE DERIVATIVE WORKS OF, REVERSE COMPILE, REVERSE ENGINEER AND/OR DISASSEMBLE ANY OF FUTURE HOSTING’ SOFTWARE OR FILES. If Customer violates or exceeds the permitted use, Future Hosting reserves the right to immediately terminate Customer’s account and will pursue any and all legal remedies available.
4.2. In addition to the limitations set forth in Section 4.1 above, Customer shall not engage in any of the following activities or practices (collectively, the Use Policies): (a) posting, transmission, re-transmission, or storing materials on or through any of Company’s products or services, if in the sole judgment of Company such posting, transmission, re-transmission or storage is (i) in violation of any local, state, federal, or non-United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations), (ii) threatening or abusive; (iii) obscene; (iv) indecent; or (v) defamatory; (b) installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer; (c) resale of Company’s products and services without the express prior written consent of Company; (d) deceptive marketing practices; (e) actions that restrict or inhibit anyone – whether a customer of Company or otherwise – in his or her use or enjoyment of Company’s products and services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of Internet services; (f) introduction of malicious programs into the Company Network or servers or other products and services of Company (e.g., viruses, Trojan horses and worms); (g) causing or attempting to cause security breaches or disruptions of Internet communications (such as, for example, accessing data of which the customer is not an intended recipient, or logging into a server or account that the Customer is not expressly authorized to access, port scans, flood pings, packet spoofing, and forged routing information); (h) executing any form of network monitoring that will intercept data not intended for the Customer; (i) circumventing user authentication or security of any host, network or account; (j) interfering with or denying service to any user other than the Customer’s host (e.g., denial of service attack); (k) using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session; (l) failing to comply with Company’s procedures relating to the activities of customers on Company-owned facilities; (m) furnishing false or incorrect data on the Order Form, including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document “use” of Company’s products or services; (n) sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of the Customer or with whom the Customer does not have an existing business relationship (e.g., E-mail “spam”); or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or SPAM; (o) harassment, whether through language, frequency, or size of messages; (p) unauthorized use or forging of mail header information; (q) solicitations of mail or any other E-mail address other than that of the poster’s account or service, with the intent to harass or collect replies; (r) creating or forwarding “chain letters” or other “pyramid schemes” of any type; (s) use of unsolicited E-mail originating from within the Company Network or networks of other Internet service providers on behalf of or to advertise any service hosted by Company or connected via the Company Network; and (t) exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions. No failure or delay in exercising or enforcing these Use Policies shall constitute a waiver of the Use Policies or of any other right or remedy. If any provision of the Use Policies is deemed unenforceable due to law or change in law, such a provision shall be disregarded and the balance of the Use Policies shall remain in effect. The Use Policies may be modified by Company at any time without notice to Customer.
4.3. Customer’s failure to comply with the terms of this MSA (including but not limited to the AUP) may result in the automatic suspension of the Services without notice. In the event Company terminates the Services, all amounts owed to Company for the Services for the entire Term are immediately due and payable by Customer to Company, without further notice or demand. In addition to amounts owed by Customer to Company for the Services, Customer shall also pay Company for any costs, or other damages incurred by Company as a result of Customer’s violation of the MSA (including but not limited to the AUP).
4.4. Company also may restrict, suspend or terminate the Services at any time without liability if Customer is in breach of this MSA (including but not limited to the AUP) and, in Company’s sole judgment, an immediate restriction or suspension is necessary to protect the Company’s ability to provide services to other customers.
4.5. Except as provided herein, either Party may terminate the contractual relationship if the Other Party breaches any material term or condition of this MSA and fails to cure such breach within ten (10) days after receipt of written notice of the same.
4.6. The Company’s failure to exercise any right or remedy provided for in the MSA does not constitute a waiver of such right or remedy, each of which is expressly preserved.
- TERM AND TERMINATION
5.1. Unless requesting Hourly Services or otherwise agreed to by the Parties in writing, such as the execution of a Work Order Form, this Agreement shall be in effect beginning on the Service Date and continuing for one (1) month (“Term”). The Term shall be extended automatically for successive one (1) month period in perpetuity unless Company provides Customer with written notice at least thirty (30) days prior to the end of the current Term or Customer submits a cancellation request in the manner specified by Section 5.2 of this MSA. Notwithstanding the language in this Section 5.1, Company reserves the right to terminate this MSA for non-payment as set forth in Section 3.7 and upon Customer’s violation of any provision contained within the AUP.
5.2. Customer may submit a cancellation request using the Customer Portal and selecting the ‘Request Cancellation” option next to the service you are canceling. The Customer Portal is located at https://my.futurehosting.com/. Future Hosting does not permit cancellation via any other method, including, but not limited to: tickets, e-mails, telephone, facsimile or postal mail. Any notice of termination will be effective on the following billing due date for the Service being terminated, thirty (30) days after the cancellation notice is submitted or the end of your Term, whichever is longer. All Customer data remaining after the effect date of any cancellation will be destroyed for security and privacy reasons, unless otherwise required by law.
5.3. Prior to the Service Date, Company may terminate the Services without liability for any reason.
6.1. Future Hosting agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, Customer Portal information, and other situations involving Customer data. Customer assumes ultimate responsibility for data integrity, retention, security, backup, and ownership.
6.2. If Customer is caught by the scope of the GDPR, Sections 6.3 and 6.4 apply to Customer.
6.3. During Customer’s use of the Services, Customer may transfer Personal Data to Company to process on Customer’s behalf. Where such transfer occurs:
6.3.1 the Parties agree that Company will be a Processor and Customer will be a Controller; and
6.3.2 the data processing terms and conditions set out in Schedule 1 will apply.
6.4. During the Term, Customer may transfer Personal Data to Company to process for Company’s own purposes (as set out in the PP). Where such transfer occurs, Customer warrants that:
6.4.1 it has transferred such Personal Data lawfully and in accordance with the GDPR and any other data protection laws or regulations relevant to Customer; and
6.4.2 Company is permitted to process such Personal Data lawfully for the purposes set out in the PP.
- DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
7.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER COMPANY NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS MSA OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES. WITHOUT PREJUDICE TO OR LIMITING OF COMPANY’S RIGHT TO RECEIVE PAYMENT FOR SERVICES, COMPANY’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND COMPANY, AND THE PROVISION BY COMPANY OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) FIFTY THOUSAND DOLLARS ($50,000.00) IN TOTAL.
7.2. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO COMPANY’S CONTROL. CUSTOMER AGREES THAT COMPANY SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO COMPANY’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. COMPANY SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). COMPANY IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM COMPANY MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, COMPANY IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD COMPANY RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE COMPANY NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COMPANY, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
7.3. NEITHER COMPANY NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
7.4. NO ACTION OR PROCEEDING AGAINST COMPANY MAY BE COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
8.0. Customer will indemnify, defend and hold harmless Company and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance or breach by Customer with respect to its obligations under this MSA; (b) from any and all claims by any of Customer’s customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that Customer will have no obligation to indemnify and defend Company against claims for damages for bodily injury or death caused by Company’s gross negligence; or (c) from claims of copyright, patent, trademark or service mark infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement or violation of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer’s customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer’s customers or authorized end users, or (iii) the use of Services by Customer in any manner inconsistent with the terms of this Agreement, including without limitation the Use Policies.
- BUSINESS CONTINUANCE PROTECTION (“BCP”)
9.0. Business continuance protection (“BCP”) is meant as a safeguard for Customer’s server. This $3.95 per month service will alleviate any costs related to bandwidth overage from DDOS related issues. The service must be purchased prior to any covered issues. Should an attack occur on Customer’s server, Company may disable the server if the issue is directly affecting other users. Bandwidth overage fees during the attack will be waived under BCP. Intentional attacks by Customer will result in a violation of the legal agreements and will result in methods of resolution under the AUP. BCP is not available in all of Company’s data center locations.
- FORCE MAJEURE
10.0. Neither Party shall be deemed in default hereunder, nor shall either Party be responsible for any cessation, interruption, or delay in the performance of its obligations under the MSA where such failure of performance is the result of any force majeure event, including, but not limited to, earthquake, flood, fire, storm, natural disaster, act of God, civil disturbances, war, terrorism, armed conflict, riots, failure of contractors or subcontractors to perform, labor strike, lockout, boycott, or acts of governmental authorities.
11.0. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without Future Hosting’ prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. Future Hosting may assign the MSA to any entity as a result of a merger or sale of all or substantially all of the assets of Future Hosting to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer’s and Future Hosting’ respective permitted successors and permitted assigns. However, Future Hosting may use third parties to provide all or part of the Services.
12.0. CUSTOMER AGREES TO ABIDE BY ALL LOCAL, STATE, AND FEDERAL LAWS PURSUANT TO SERVICES DELIVERED IN SOUTHFIELD, MICHIGAN, UNITED STATES OF AMERICA. THIS AGREEMENT IS MADE UNDER AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EXCLUSIVE VENUE AND JURISDICTION FOR ANY AND ALL LEGAL REMEDIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE OAKLAND COUNTY, SOUTHFIELD, MICHIGAN. EACH PARTY IRREVOCABLY CONSENTS TO THE FOREGOING JURISDICTION AND VENUE REQUIREMENTS AND WAIVES ANY AND ALL OBJECTIONS TO SUCH REQUIREMENTS.
13.0. Any controversy or claim arising from service or related to this MSA or breach therein in excess of five hundred dollars (“$500”) shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The venue and jurisdiction requirements set forth above apply to any arbitration proceedings. The resulting judgment rendered by a licensed arbitrator may be entered in any court having valid jurisdiction.
- LEGAL COMPLIANCE
14.0. By accepting this MSA, Customer represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Customer further represents and warrants that he/she has full authority and power to enter agree to the terms of the MSA on behalf of the company he/she represents, if any. Additionally, Customer warrants that he/she is at least eighteen (“18”) years of age or older and are not otherwise legally incapacitated to agree to the terms of the MSA.
- ELECTRONIC SIGNATURE
15.0. Acceptance by Customer of the MSA incorporating the TOS, AUP, SLA, PA and CSA hereby initiates billable services and is deemed complete by agreement to the terms as described on the online signup form(s) and completion of the ordering process.
16.0. If any part of this MSA is found unenforceable by the court or other tribunal, the remaining provisions of the MSA will nonetheless continue in effect, and the Parties agree that any court or other tribunal may reform the unenforceable part if it impossible to do so.
17.0. Advertised weekly specials or sales are available for new customers only. Company’s existing customers may be eligible for other promotions. Customers attempting to circumvent this by ordering under different names or new accounts will have the discounts removed. Weekly specials are offered based on node availability. Offers may be revoked at any time, in Company’s sole discretion, without notice. Discounts on an existing plan may be carried through upgrade within the same service line. In the event of a downgrade, all discounts are revoked. Offers may not be combined unless otherwise stated in writing.
- VIRTUAL PRIVATE SERVER DISK INODES
18.0. All virtual private server packages include 2,000,000 disk inodes by default. Company reserves the right to restrict the used to a maximum of 5,000,000 inodes.
- USE OF CUSTOMER LOGO AND TESTIMONIALS
19.0. If, and only if, Customer executes a separate writing that explicitly expresses Customer’s consent to be bound by the terms and conditions of this Section 19, Customer hereby grants to Company a non-exclusive, non-sublicensable, royalty free, revocable license to use any of Customer’s trademarks, service marks, names, trade names, likenesses, and logos (the “Logos”) in connection with Company’s advertising, marketing, promotional activities, and websites. Customer further agrees that Company may use any testimonial(s) submitted by Customer in the same manner that Company is authorized to use the Logos licensed herein. Other than the license granted by this Section 19, Company acknowledges and agrees that it shall not acquire any right, title, or interest in the trademark rights to the Logos and all said rights shall remain the sole and exclusive property of Customer. Customer represents and warrants that Customer owns all rights and interests licensed to Company pursuant to this Section 19 and that the Logos do not infringe upon the rights of any third party not a party to this MSA. Customer may withdraw this consent to be bound by this Section 19, at any time, by providing Company with thirty (30) days’ written notice.
20.0. Legal Inquiries:
c/o: Legal Department
21700 Melrose Ave.
Southfield, MI 48075
Facsimile No.: 248.281.0473