The following terms of service (these "Terms of Service" or this "Agreement") govern the provision by WSU TECH LLC (Server With US, serverwith.us and ServerwitUS Hosting) to the customer executing this online transaction ("Customer"), of the products and services described in (i) the Order Form submitted in connection with this online transaction (the "Order Form"), (ii) the Service Level Agreement (as in effect from time to time and set forth on Serverwithus's website, the “SLA”) governing the Customer’s limited right to recover certain service credits and (iii) Serverwithus’s technical support descriptions (collectively clauses (i) through (iii), the "Products and Services"). These Terms of Service shall be effective as of the date that Customer executes its online transaction and thereby accepts these Terms of Services (the “Effective Date”). These Terms of Service hereby incorporate by reference the SLA, Serverwithus’s Acceptable Usage Policy (as in effect from time to time as set forth on Serverwithus’s website, the “AUP”) and the Order Form each of which is made a part of these Terms of Service and collectively referred to herein as the Agreement.” Customer’s use of Serverwithus’s website, Serverwithus Network, and the Products and Services is also subject to Customer’s acceptance and compliance with these Terms of Service, the AUP, the SLA and the Order Form. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable.
PLEASE READ THIS AGREEMENT CAREFULLY. This is a binding agreement between Customer and Serverwithus and includes automatic renewal terms. By submitting an Order Form online or by using Products and Services, Customer hereby agrees to the terms and conditions of the Agreement. THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS. PARAGRAPH 11 REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Changes to this Agreement
From time to time, Serverwithus may change this Agreement. Hiveolcity will provide you with notice of material changes via the e-mail address associated with the Customer’s account, and by posting online at https://serverwith.us/term_of_use_and_conditions . It is your responsibility to check for any such notices. Your continued subscription to and payment for Hiveolcity’s services after the effective date of the change constitutes your acceptance of such changes. Serverwithus is not making any representation regarding the availability of any Product or Service, which may be changed of discontinued.
2. Services and Monthly Commitments
Serverwithus agrees to provide the Products and Services in accordance with the pricing, terms and conditions of this Agreement beginning on the Effective Date. Serverwithus may perform additional technical, supplemental, or professional services (Additional Products and Services) for Customer at either Serverwithus’s published pricing rates or at rates mutually agreed to in writing between Customer and Serverwithus. Also, Serverwithus may perform remedial services as provided for in the AUP at the pricing set forth therein and without obtaining Customer’s consent in advance.
3. Term and Renewal
Unless Customer agrees to a one-year, semi-annual or quarterly term or unless otherwise stated in an Order Form or any service description, the initial term (“Initial Term”) of this Agreement shall be month-to-month, (A) commencing on the Effective Date and shall automatically renew on the monthly anniversary date (date of initial signup), for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement or (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a “Renewal Period”). Customer agrees to be bound by the service term selected on the Order Form or via applicable promotional codes. Serverwithus may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.
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5. Customer Cancellation or Non-Renewal
In order to cancel or elect not to renew any Product or Service, Customer must login to Customer’s myVelocity control panel, go to the device Customer wishes to cancel, click the cancellation button, and fill out the form. All account cancellations must be received in the above manner at least fifteen (15) days in advance of the date of renewal. Accounts cancelled with less than fifteen (15) days notice shall be cancelled at the end of the next term and shall be charged accordingly. When a cancellation request is made, Serverwithus will immediately remove all configuration information as well as all contents of the account on the date of the next renewal of the account. Customer may request immediate cancellation if so desired. Serverwithus will remove all files. This may include unread e-mail left on the server. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CANCELS THE PRODUCTS AND SERVICES AS PROVIDED IN THIS SECTION.
Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by Serverwithus of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within fifteen (15) business days after written notice from Customer describing such breach in detail is received by Serverwithus (“Customer Termination”). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which Serverwithus does not then provide general customer support, Customer shall pay to Serverwithus an amount equal to Serverwithus's cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to Serverwithus an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination. CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.
Upon termination of this Agreement, Serverwithus and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to Serverwithus under these Terms of Service, (ii) immediately remove from Serverwithus's premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from Serverwithus Network (including all servers owned or operated by Serverwithus), and (iii) return to Serverwithus all software, access keys, and any other property provided to Customer by Serverwithus under this Agreement. Any physical property of Customer not removed from Serverwithus’s premises within forty- five (45) days after such termination shall become the property of Serverwithus, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 8, 9, and 11 shall survive the expiration, cancellation, or termination of this Agreement for any reason.
Customer agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively “Charges”) in US dollars. Each Customer that is a Florida resident agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of for Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery. Customer also shall pay to Serverwithus all expenses incurred by Serverwithus in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys' fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by Serverwithus s given to Customer, Serverwithus may suspend performance under this Agreement and if such past due amounts remain unpaid for an additional five (5) days thereafter, Serverwithus may terminate this Agreement. Serverwithus may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to Serverwithus within sixty (60) days of the invoice date. Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding. The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by Serverwithus for any reason constituting “Serverwithus Termination” (as defined above) or by Customer for any reason other than “Customer Termination” (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by Serverwithus according to the terms herein.
Customer agrees to indemnify and hold harmless Serverwithus, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Customer’s use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Losses, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
9. Disclaimers; Limitation on Company Liability.
HIVELOCITY SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA OR CORRUPTION OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF HIVELOCITY NETWORK, RECLAMATION OF SERVERS BY HIVELOCITY, FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF HIVELOCITY. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON HIVELOCITY NETWORK OR ANY SERVER OWNED OR OPERATED BY HIVELOCITY. IN NO EVENT SHALL HIVELOCITY’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO HIVELOCITY IN THE BILLING CYCLE IMMEDIATELY PRECEDING SUCH CLAIM. HIVELOCITY PROVIDES ALL PRODUCTS AND SERVICES “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND HIVELOCITY SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST HIVELOCITY MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE RECEIPT OF A SERVICE CREDIT AS PROVIDED FOR IN THE SLA CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND HIVELOCITY’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY FAILURE OF HIVELOCITY NETWORK, HIVELOCITY HARDWARE OR HIVELOCITY INFRASTRUCTURE OR THE FAILURE BY HIVELOCITY TO PROVIDE CUSTOMER WITH THE PRODUCTS AND SERVICES OR MANAGED HOSTING SERVICES PURCHASED BY CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT WHICH RESULTS FROM A QUALIFIED NETWORK DOWNTIME EVENT OR ANY OTHER QUALIFIED DOWNTIME EVENT.
10. Miscellaneous Terms
a. Bandwidth. Customer agrees that bandwidth usage shall not exceed the number of Gigabytes per month for the Products and Services ordered by Customer on the Order Form (the "Agreed Usage”) without overage fees and/or penalties occurring. Serverwithus will monitor Customer's bandwidth and reserves the right to take corrective action if Customer's bandwidth exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Products and Services, or termination of these Terms of Service, which actions may be taken by Serverwithus in its sole and absolute discretion. If Serverwithus takes any corrective action under these Terms of Service, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. Bandwidth usage is measured on a monthly basis with the server start date serving as the beginning of the monthly bandwidth measuring cycle. Only outgoing traffic is counted and applied towards the Agreed Usage. In the event that Customer exceeds the Agreed Usage, Serverwithus may, at its sole discretion, collect overage fees, in the amount of $0.05 per GB from Customer, or to the extent that Customer has a credit card on file with Serverwithus, apply such charge against Customer’s credit card. Data transfer in excess of the Agreed Usage shall be automatically billed to Customer. Unused Agreed Usage or bandwidth allocations cannot be carried over to future months or applied to other servers.
Customer consents to Serverwithus’s use of Customer’s name and logo during the term of service solely to identify Customer as a client of Serverwithus.
b. Notices. Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, or registered or certified mail (return receipt requested) to the address or facsimile number of Customer listed in Serverwithus’s records or if to Serverwithus then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the date that return confirmation is received (if sent by facsimile), (c) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).
WSU TECH LLC
Attn: Legal Department
124 SE 1ST ST
MIAMI, FL 33131
c. Waiver. It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
d. Severability. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
e. Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.
f. Non-Solicitation. During the term of this Agreement and for twelve (12) months following termination of this Agreement, Customer agrees that it shall not solicit for employment with Customer (or with any other party) any employee of Serverwithus or interfere in the employment relationship between Serverwithus and any of its employees with whom Customer has had contact in connection with this Agreement.
g. Ownership. Serverwithus shall be the sole owner of all intellectual property, and all derivatives thereof, that Serverwithus may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Products and Services.
h. Customer Hardware. Serverwithus acknowledges and agrees that the hardware provided by Customer to Serverwithus to be used in connection with any Products and Services (the “Customer Hardware”) is the property of Customer and shall be tagged and identified as such. Serverwithus shall not pledge, hypothecate or otherwise encumber the Customer Hardware in any way and upon demand by Customer shall surrender the Customer Hardware to Customer, unless Customer fails to remove such Customer Hardware as provided for in Section 4 above.
i. Third-Party Beneficiaries. There shall be no third party beneficiaries to the Agreement, including customers, employees, agents, or insurers.
j. Assignment. This Agreement shall not be assignable by Customer without Serverwithus’s prior written consent. Serverwithus may assign the Agreement in whole or in part upon written notice to Customer. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
11. Agreement to Arbitrate
For purposes of this Section, “Dispute” shall mean any dispute, claim, or action between Customer and Serverwithus arising out of or relating to the Serverwithus’s provision of Products or Services, the Customer’s use of and payment for those services, or any other transaction involving you and Serverwithus, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. Moreover, notwithstanding anything else in the Agreement, you agree that a court, not the arbitrator, may decide if a claim falls within one of these six exceptions.
a. Dispute Notice. In the event of a Dispute, Customer or Serverwithus must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Serverwithus must be addressed to the address listed for Notices in Section 10(b), above (the “Serverwithus Notice Address”). The Dispute Notice to Customer will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Serverwithus and Customer do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, Customer or Serverwithus may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
b. Binding Arbitration. In the event Customer and Serverwithus do not reach an agreement to resolve the Dispute as stated in the preceding paragraph, Customer and Serverwithus further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions in the Agreement; (b) the Agreement memorializes a transaction in interstate commerce; (c) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (d) this Section shall survive termination of the Agreement. ARBITRATION MEANS THAT CUSTOMER WAIVE CUSTOMER’S RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND CUSTOMER’S GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award Customer the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
- c. Small Claims Court. Notwithstanding the foregoing, Customer may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
d. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. CUSTOMER AND HIVELOCITY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
e. Amendments to this Section. Notwithstanding any provision in this Agreement to the contrary, Customer and Serverwithus agree that if Serverwithus makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Serverwithus’s address) in this Section, Serverwithus will obtain Customer’s affirmative assent to the applicable amendment. If Customer does not affirmatively assent to the applicable amendment, Customer is agreeing that Customer will arbitrate any Dispute between us in accordance with the language of this Section.
f. Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void, with the exception of Section 11(h). The terms of this Section shall otherwise survive any termination of these Policies and Procedures.
g. Exclusive Venue for Other Controversies. Serverwithus and Customer agree that any controversy that is not covered by the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Hillsborough, Florida, or the United States District Court for the Southern District of Florida, and each party hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for any such controversy
- h. Survival. The terms of this Section 11 shall otherwise survive any termination of these Terms of Service.
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