Acceptance. By accepting ordering and using any of the products and services (collectively referred to herein as the “Services”) provided by M5 Internet Hosting (“M5”), Customer agrees to be bound by all the terms and conditions of this Agreement.
Provision of Services. M5 agrees to provide Customer with Services, pursuant to the online or telephone purchase of such Services (“Purchase Order”), and such additional Services as may be provided by M5 from time to time under additional Purchase Orders. Most Purchase Orders are active within 24 hours of order placement, if placed within regular business hours (M-F 8am-5pm). M5 reserves the right to change or modify the features of any Service from time to time on thirty (30) days written notice to Customer. Customer’s continued use of M5’s Services after receipt of such a notice of modification shall constitute Customer’s acceptance of and agreement to be bound by the M5’s modification of the terms and conditions of this Agreement. Customer may also increase its Services by submitting additional Purchase Orders by phone or online. Such additional Services shall be provided subject to all terms and conditions of this Agreement, which may be modified from time to time.
Service Level Agreement.
(a) Servers. Servers are housed in two facilities (“Data Centers”) in San Diego, California. M5 reserves the right to add or remove Data Centers and to provide the Services from a Data Center chosen in M5’s sole discretion. Data Centers and co-locations meet the following standards:
(i) Physical entry is protected by camera surveillance, biometric (hand) scanners, badge access, internal locking cabinets and other security devices and measures.
(ii) Data Centers are SAS-70 Type II and SSAE-16 Type 2 audited.
(iii) The environment is controlled by N+1 or 2N chiller plant and CRAC/CRAH units.
(iv) Data Centers are served by battery-backed UPS systems, diesel generators, and guaranteed fuel delivery contracts from multiple providers.
(b) Hardware, Software and Equipment. M5 shall use hardware, software and other equipment that meets commercially reasonable standards for the industry.
(i) Standard maintenance occurs Sunday 12am-4am PST. If M5, in its reasonable judgment, determines that any maintenance is expected to have a Customer impact, M5 shall provide advance notice of such maintenance. M5 shall not be required to provide notice to Customer if any maintenance merely poses a risk of interruption.
(ii) Notwithstanding the foregoing, M5 shall not be required to give notice, despite any risk of, or expected, Customer impact, in the event of an emergency, requiring maintenance to restore Services, or to prevent an outage to more than one Customer, if any such announcement is not practicable regardless of impact.
(d)Data Back Up. Data back-up is only provided as an additional paid Service. If Customer elects not to purchase data back-up Services from M5, Customer shall bear all risk and M5 shall have no liability associated with the loss of any data regardless of cause.
(e) Technical Support. Technical support is delivered in accordance with the Services purchased by Customer. If Customer is in breach of this Agreement, M5 may refuse to provide technical services until Customer cures any such breach.
Additional Customer Obligations.
(a) Authorization. M5 requires administrative (root) access to Customer’s server (“Server”) to provide the Services. By ordering and using the Services, Customer authorizes M5 and its employees, agents or subcontractors to access the Server at anytime for the purpose of Server administration. Further, Customer authorizes M5 to contact responsible parties for hardware maintenance, technical support, server reboots, or other services in an effort to provide the Services.
(b) Access Procedures and Information. In order to provide the Services, M5 may require that Customer provides and maintains appropriate Server access procedures. Customer is responsible for providing M5 sufficient access to information and procedures to execute the terms of the support plan. All passwords, website addresses, email addresses and telephone numbers required to execute this Agreement must be provided to M5 in an accurate and timely fashion. By failing to provide appropriate access to information, Customer releases M5 from its obligation under this Agreement. Customer is responsible for informing M5 of any changes to the above information or any other information required to provide the Services, including but not limited to provider contact information, provider access information, and other 3rd party access information. M5 may from time to time request such information, and Customer agrees to timely respond to any such request.
(c) Online Account Manager. In conjunction with the Services, M5 shall establish for Customer an online account (“Online Account”), which may be accessed through M5’s website. Customer invoices and account information will be available via the Online Account. Customer shall keep all contact and other information in Customer’s Online Account current. Customer shall use Online Account to submit any support tickets or otherwise communicate with the M5 in writing.
Term. Unless otherwise specified in the Purchase Order, the Services shall be provided on a month to month basis, and shall automatically renew each month. Either party may terminate this Agreement without cause on thirty (30) days written notice to the other party. Notwithstanding the foregoing, if Customer chooses to pay M5 quarterly, the renewal term shall continue for each quarter (three months). In the event of a cancellation, M5 will not refund amounts already billed for the current monthly or quarterly term in which Customer terminates the Services. Services billed on an hourly rate that may be cancelled without notice through Customer’s Online Account, will be terminated for billing purposes within one hour of such notice of cancellation.
Termination for Cause. Customer agrees to abide by the terms of this Agreement and by M5’s general use policies as set forth in this Agreement, or as posted on the M5’s website, including but not limited to the Acceptable Use Policy, as those policies may exist from time to time. M5 may change its use policies on 30-day written notice to Customer by e-mail message, by notice on the website, or through Customer’s Online Account. Any violation by Customer of the terms of this Agreement or of M5’s general use policies shall be grounds for immediate termination of this Agreement for cause. If M5 terminates this Agreement for a violation of this Agreement, M5 shall not be required to refund any amounts billed for the billing period in which M5 terminates this Agreement.
Payment Terms. Customer agrees to pay M5’s published rates for the Services including any set up fees. M5 reserves the right to change or modify its charges for Services from time to time on (30) days written notice or e-mail or through the Online Account to Customer. Customer’s continued use of Services after receipt of such a notice shall constitute Customer’s acceptance of and agreement to be bound by the M5’s modified charges for the Services. Additional charges for add-on services not included in Customer’s plan will be made as if and as such Services are ordered by Customer.
Services charged at a monthly rate as published on M5’s website, are payable in advance on a monthly or quarterly basis or in one, 3, 6 or 12 month installments, as agreed by both parties. M5 will invoice Customer at the beginning of each payment period. Services charged on an hourly rate based on usage, and any overage charges, excess use charges and penalties and will be invoiced to Customer in the month following the month in which they are incurred. M5 will submit all invoices to Customer by e-mail or through Customer’s Online Account. Payment is due immediately upon receipt of invoice. Payments can be made online via PayPal, by credit card authorization or by check. Interest in the amount of one and one half percent (1.5%) per month will be added to any outstanding invoices remaining unpaid for more than thirty (30) days. Prior to delivering Services, and during the entire term of this Agreement, M5 may require Customer to submit and maintain a deposit or credit card authorization to secure payment for Services, Customer agrees that the delivery of Services is contingent upon receipt and maintenance of such security, and that M5 may charge any unpaid fees against the deposit or credit card on file without advance notice to Customer. Any such charges to the deposit or the credit card on file shall be disclosed on the appropriate invoice.
Taxes. M5 shall not be liable for any taxes and other governmental fees related to purchases made by Customer other than M5’s income taxes. Customer agrees to be fully responsible for all taxes and fees of any nature associated with the Services.
Materials and Products. Any material and data Customer provides to M5 in connection with Services shall be in a form requiring no additional manipulation on the part of M5. M5 shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. M5, in its sole discretion, may reject material or data that Customer has placed on M5’s servers or that Customer has requested that M5 put on M5′ servers. M5 agrees to notify Customer immediately of its refusal of any material or data and provide Customer with an opportunity to amend or modify the material or data to meet the M5’s requirements. Customer’s failure to amend or modify the data or material as directed by M5 within a reasonable time shall be a breach of this Agreement.
Electronic Mail Abuse. Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Customer may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Customer must not send that person any further e-mail. Customers are explicitly prohibited from sending unsolicited bulk e-mail messages (“junk mail” or “spam”). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Customers may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to “mail bombing” (flooding a user or site with very large or numerous pieces of e-mail) and “trolling” (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person’s permission is prohibited. M5’s Services may not be used to collect replies to messages sent from an Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement will result in immediate termination of this Agreement and provider reserves the right to charge an administrative clean-up fee of up to $____________________ and a deactivation fee of $____________________.
Violations of Network Security. Customer is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of this Agreement for cause. M5 will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the Customer or logging into a server or account that the Customer is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or news group posting.
(e) Taking any action in order to obtain services to which the Customer is not entitled.
Warranty Against Unlawful Use. Customer warrants and represents that Customer shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of this Agreement for cause.
Liability; No Warranty; Limitation of Damages. Customer expressly agrees that use of Services provided by M5 is at Customer’s sole risk.
M5 guarantees 99.9% percent uptime for its Web servers. If uptime for Customer’s Web server uptime average falls below 99.9% percent during any given month, M5 will credit Customer as follows: ___________________. Any such credit shall be applied to future invoices. This credit shall be Customer’s sole and exclusive compensation for any downtime or other unavailability of the Services under this Agreement. M5 SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY DAMAGES OR LOSS ARISING AS A CONSEQUENCE OF SUCH DOWNTIME OR UNAVAILABILITY.
M5, ITS AGENTS, AFFILIATES, LICENSORS OR THE LIKE, DO NOT REPRESENT OR WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THEIR SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEIR SERVICES OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THEIR SERVICES, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.
M5, ITS OFFICERS, AGENTS, OR ANYONE ELSE INVOLVED IN PROVIDING SERVICES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE SERVICES; OR FOR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO M5’S RECORDS, PROGRAMS, OR SERVICES.
M5 will exercise no control over the content of the information passing through M5’s network except those controls expressly provided herein.
M5 MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING. M5 ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY CUSTOMER, INCLUDING LOSS OF DATA RESULTING FROM DELAYS OR NON-DELIVERIES.
Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights. Use of the Services does not transfer any right, title or interest in or to any Customer content or materials to M5. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Customer. Customer agrees that all right, title, and interest in any Services provided to Customer belongs to M5. These Services are only for Customer’s use as outlined in this Agreement. Customer expressly warrants to M5 that Customer has the right to use any patented, copyrighted, or trademarked material which Customer uses, posts, or otherwise transfers to M5 servers.
Required Hardware, Equipment, and Software. Customer is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access M5 Servers. M5 makes no representations, warranties, or assurances that Customer’s equipment will be compatible with M5 Services.
Age. Customer expressly represents and warrants that Customer and any person to whom Customer grants access to Customer’s Online Account are at least 18 years of age.
Indemnification. Customer agrees to defend, indemnify, and hold M5 harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against M5, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Customer, Customer’s agents, employees, or assigns. Customer further agrees to defend, indemnify, and hold harmless M5 against liabilities arising out of:
(a) Any liability to M5 arising by virtue of any use of the Services by Customer for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Customer;
(c) Any material supplied by Customer infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by Customer, or violation by Customer of intellectual property rights of any other party; and
(e) Any defective product which Customer sold or distributed by means of Services.
Customer agrees that the liability of M5 for any claim, loss or damage, including any reasonable attorneys’ fees and court costs, shall in no event be greater than the aggregate dollar amount which Customer paid to M5 for the Services during the term of this Agreement,.
Attorneys’ Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Notice. All notice shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile, e-mail or through the Online Account. All notice shall be directed to Customer at the contact information on file for Customer through the Online Account or to M5 as listed on M5’s website. Customer agrees to keep M5 informed of all current contact information for Customer. Changes in Customer’s account information may be made by Customer by use of the Customer’s Online Account at https://service.m5hosting.com/. Failure to maintain or keep current all contact and payment information shall be grounds for M5 to terminate this Agreement for cause.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California. Customer agrees to submit to the jurisdiction of the state of California and venue for any dispute resolution in San Diego County.
Arbitration. Any claim or controversy of whatever nature, in an amount exceeding five thousand ($5,000.00), including but not limited to tort and contract claims, claims arising under common law or based upon any federal, state or local statute, law, order, ordinance or regulations, and claims arising out of or relating to this Agreement or the breach thereof, shall be resolved by final and binding arbitration. This mandatory arbitration provision includes any dispute between Customer and M5 and its current and former officers, directors, employees and agents.
Any covered dispute must be submitted to arbitration in accordance with the rules of the Commercial Arbitration Rules of the American Arbitration Association, except as otherwise provided in this Agreement. Any such arbitration shall be conducted in the State of California. Arbitrator shall not have the authority to award punitive damages or any other damages not measured by the prevailing parties actual damages.
Severability. In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
Waiver. No waiver by M5 of any breach by Customer of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such a writing.
Entire Agreement. This Agreement together with any Purchase Order the Acceptable Use Policy and any other policies posted on the M5’s website shall constitute the entire agreement between Customer and M5.
Force Majeur. If M5’s performance is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of terrorism or act of God, or any other cause beyond the control of M5, M5 shall be excused from such performance to the extent that it is prevented, hindered, or delayed by such cause.