version 2.1.0, modified 6/1/2014
THIS AGREEMENT ("Agreement") is made and effective as of the date of acceptance, by and between you ("Client") and Ayera Technologies, Inc. ("Ayera").
WHEREAS, Ayera owns, distributes and provides various products and services for conducting business on the Internet including: shared and dedicated web hosting, email hosting, database hosting, DNS services, internet bandwidth, collocation services, and the Ayera family of services (hereinafter collectively referred to as the "Services").
WHEREAS, Client desires to utilize some or all of the Services to develop, enhance or maintain Client's business and/or presence on the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. AYERA SERVICES
Ayera agrees to provide to Client the Services agreed upon between Ayera and Client as selected via Service Orders.
2. PAYMENT AND INVOICING
2.1 In consideration of the performance of the Services, Client shall pay Ayera monthly in advance the amount set forth in Ayera customer database based on Service Orders, which may be generated via e-mail, the Ayera web site, or other means.
2.2 Client shall receive a confirmation letter via e-mail at the time the Services are activated, which shall confirm the fees payable to Ayera. Thereafter, Client shall receive a monthly billing statement for Services. The monthly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting from Client's use of the 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 Ayera in the event that Client's account is terminated by Ayera or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Ayera by sending an e-mail with account information to firstname.lastname@example.org.
2.4 Rates for using the Services will depend on Client's configuration and requirements. Base pricing for services will remain locked in during the term of this contract, if any, and both contract term and pricing will be specified in Addendum B. In absence of a contract term, or in the even the contract term expires, services will be billed on a month-to-month basis, and service pricing is subject to change at any time. Ayera reserves the right to change surcharges, monthly membership fees or to institute new fees at any time. If Ayera does not receive the full amount of Client's Service account balance within twenty-five (25) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month will be added to Client's bill and shall be due and payable. Client shall also be responsible for all attorney and collection fees arising from Ayera's efforts to collect any unpaid balance of Client's account(s), and Ayera may terminate Client's account immediately without further notice to Client.
3. RESPONSIBILITIES AND RIGHTS OF AYERA
3.1 Means of Performance. Ayera shall provide Client with the Services, as described in Service Orders. Ayera has the right to control and direct the means, manner, and method by which the host services are performed.
3.2 Support. Ayera shall provide a reasonable level of technical support to Client via email, phone and/or Web page for the term of this Agreement.
3.3 Other Work. Ayera has the right to perform and license products to others during the term of this Agreement. Ayera may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. Ayera reserves the right to block any site hosted by Ayera that contains any content that Ayera deems in its sole discretion to be unacceptable or undesirable.
3.4 Service Level Agreement. Visit http://www.ayera.com/hosting/sla/ to view a copy of our current hosting SLA.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client's obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Ayera Clients' use of Services. Client assumes all risks related to processing of transactions related to electronic commerce. Client agrees to provide Ayera with accurate, complete and updated information required by the registration of the Services (Client Registration Data), including Client's legal name, address, email address, and telephone number(s). Client agrees to notify Ayera within thirty (30) days of any changes in Client's Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Ayera will have the right, in its sole discretion, to suspend or terminate immediately any Services.
4.3 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 Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the third-party software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes Ayera to delegate the authorizations Client provides to Ayera to its third party service provider(s) as Ayera deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to "Ayera" within this Agreement and any incorporated terms are also deemed to include, where applicable, Ayera's agents, such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the Ayera clients or other Internet users unless Client receives the express permission of such individuals. Client may not use any means of unsolicited advertising to advertise a site hosted on the Ayera network. Client may not use the Services to collect or "harvest" user-names of Ayera clients or other Internet users without the expressed prior permission of the user. Ayera reserves the right to block or filter mass email solicitations sent from sites hosted on the Ayera network.
4.6 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, Ayera's then-standard Terms of Service ("TOS") and any generally applicable guidelines and service standards published by Ayera. Client warrants that its site hosted on the Ayera network (i) will conform to the Ayera TOS attached hereto as Addendum A. Ayera reserves the right to block any site that violates any of the above-stated terms, or which in Ayera's sole discretion, Ayera deems objectionable or offensive, or otherwise violates a law or Ayera policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Ayera from time to time. The TOS are incorporated herein and made a part hereof by this reference. Ayera may change the TOS, with notice, which notice may be provided by posting such new TOS on the Ayera Web Site. Client may request a current copy of the TOS by sending or faxing a request to Ayera. Client agrees that it has received, read and understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work performed hereunder by Ayera, is the property of Ayera, and all title and interest therein shall vest in Ayera. To the extent that title to any such works may not, by operation of law, vest in Ayera all rights, title and interest therein are hereby irrevocably assigned to Ayera. All such materials shall belong exclusively to Ayera, and Ayera 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 Ayera and any person designated by Ayera such reasonable assistance, at Ayera's expense, as is required to perfect the rights defined in this paragraph.
4.9 Marketing Rights. Client agrees that Ayera may refer to Client, or Client's business in Ayera marketing materials, the Ayera website, and communication to Ayera's current and prospective clients. Client grants Ayera a limited license and permission to use any Client trade name and/or trademark for such, and only for such, purposes.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
5.1 Limitation. In the event that any limited guarantees are provided by Ayera, such limited guarantees are null and void if Client fails to follow Ayera's TOS and other policies or otherwise breaches this Agreement in any respect.
5.2 No Other Warranty. Ayera does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained there from is at Client's own risk. The Services are provided on an "as is" basis, and Client's use of the Services is at its own risk. Except as provided in the order form(s), Ayera does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Ayera does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Ayera does not and cannot control the flow of information to or from Ayera's network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client's connections to the Internet (or portions thereof). Ayera cannot guarantee that such events will not occur. Accordingly, Ayera disclaims any and all liability resulting from or related to such events.
Client agrees to indemnify, defend and hold Ayera and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys' fees, made by any person arising out of Client's violation of this Agreement, State or Federal Securities laws or regulations, or any other person's rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
Under no circumstances, including but not limited to a negligent act, will Ayera or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.
In no event will Ayera or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by Ayera. Ayera and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if Ayera or its third party service providers has been advised of the possibility of such damages, resulting from: (i) the use of or the inability to use the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user date, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchases or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold Ayera responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.
Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of Ayera and its third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those states.
In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client's remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of Ayera and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $200 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.
7.1 Without Cause. This Agreement may be terminated by either party at any time for any or no reason upon either party giving to the other no less than thirty (30) days' prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
7.2 For Cause. In addition to any other rights it may have under this Agreement or applicable law, Ayera may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client's breach or failure to comply with the TOS or other policies of Ayera. Client may terminate this Agreement if Ayera breaches any material term or written notice of same. If this Agreement is terminated by Ayera under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Ayera reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Ayera believes in its sole discretion to be illegal or potentially harmful to others or may expose Ayera to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
7.5 IP Address. Upon expiration, cancellation or termination of this Agreement, Client shall relinquish any Internet protocol ("IP") numbers, address or address blocks assigned to Client by Ayera or its network services supplier (but not the URL or top level domain connected therewith). Ayera reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
8.1 Assignment. Client may not assign this Agreement or any of Client's rights or obligations hereunder without the prior written consent of Ayera, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns.
8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.
If to Ayera:
Ayera Technologies, Inc.
P.O. Box 576846
Modesto, CA 95357 USA
If to Client:
To Client address provided at account set-up and/or currently on-file in Ayera's customer database
8.3 Governing Law. This Agreement, and all future agreements Client may enter into with Ayera, unless otherwise indicated on such other agreement, will be governed by the laws of the State of California, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Ayera in California or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the County of Stanislaus, California. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
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 exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Ayera and its affiliates, agents, employees, or licensors (including third party service providers) shall not 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 to transport, accident, ware, 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 fifteen (15) days, 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 Terms of Services. Client agrees to be bound by Ayera's TOS for all Services and products used by Client. The current TOS can be found on Ayera's website at http://www.ayera.com/hosting/terms_of_service/. Should Client disagree with any updates to Ayera's TOS, it is Client's responsibility to notify Ayera of Client's desire to terminate their Services immediately.
8.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND AYERA'S TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREMEENT AND THE TOS.
CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
8.11 Entire Agreement. This Agreement, and the exhibits reference herein, 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 are 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.
8.12 No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.
Ayera Terms of Service (TOS)
v.1.2.1 (revised March 21, 2008)
I. General Terms
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Ayera, are entirely responsible for all Content that you upload, post or otherwise transmit via the Services. Ayera does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You agree to not use the Ayera Services to:
II. For any Dedicated Hosting Services, you also agree to:
- upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, an Ayera employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites;
- upload, post or otherwise transmit any Content that may cause interruption to Services, including but not limited to, web scripts, applications, templates, and database scripts. Ayera, at its full discretion, may remove, block, or disable such Content to ensure proper functioning of its Services;
- You also agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
III. For any Collocation Services, you also agree to:
- allow Ayera full, unrestricted Administrative access to server(s) via appropriate Ayera user and/or group accounts. Client shall not delete, disable, restrict, rename, or change the password of any administrative or Ayera user account on equipment used to provide Services;
- keep all Ayera-designated monitoring and remote-access services and/or hardware running on server(s) and equipment;
- keep Ayera-installed anti-virus and security software running on server(s) at all times;
- ensure any 3rd party software installed on dedicated server(s) by Client are properly licensed for use by Client and/or Client's customers;
- allow any and all Ayera-initiated hardware and/or software maintenance, upgrades, patches, or any other server modifications to be performed on a mutually-agreed to, reasonable schedule.
IV. For any Email Hosting Services, you also agree to:
- keep Ayera-approved anti-virus and/or security software running on collocated server(s) at all times;
- ensure any 3rd party software installed by Client on collocated server(s) are properly licensed for use by Client and/or Client's customers;
- understand that, per NEC regulations, continuous amperage load on power circuits shall not exceed 80% of the rated amperage load (16A for 20A circuits, and 24A for 30A circuits);
- agree that any and all equipment, cabling, and other items used in your collocation service is contained within your designated cabinet;
- understand that any unapproved access of core infrastructure including, but not limited to, UPS power equipment, breaker panels, routers or switching equipment, air conditioning units, cabling and conduits, and storage areas are deemed cause for immediate termination of services;
- understand that any unapproved access of other collocation client's cabinets, equipment, or cabling is grounds for immediate termination of services.
- understand that a default in Services payment will cause an immediate physical and network lockout of access to your collocated equipment, and that after 30 days of emailed notice of payment default without resolution, your equipment becomes the property of Ayera Technologies, Inc.
V. For any Domain Services, including but not limited to Domain Name Registration, Digital Web Certificates, Domain Name Services (DNS), you also agree to:
- allow forwarding to Ayera-designated email addresses and/or unrestricted use of the "hostmaster", "postmaster", and "abuse" email accounts on any Client domains hosted on Ayera Mail Servers.
VI. For any Virtual Hosting Services, you also agree to:
- allow Ayera to serve as the Technical Contact for the domain's database of record;
- agree-to and abide-by any separate Contracts, TOS, or Agreements specified by Ayera and/or the Domain Services providers and/or registrars;
- hold Ayera harmless for any failure to register, transfer, renew, resolve, or disconnect any Client domains or domain-related Services.
- allow Ayera full, unrestricted Administrative access to the virtual instance via appropriate Ayera user, group accounts, and tools. Client shall not delete, disable, restrict, rename, or change the password of any administrative or Ayera user account on equipment used to provide Services;
- keep all Ayera-designated monitoring and remote-access services running on VPS instance;
- understand that each virtual CPU is the equivalent of 1,000 MHz (1 GHz) of guaranteed processing power, while being allowed to burst to the maximum processing power of a physical CPU core (typically 2.0GHz or higher);
- minimize disk I/O operations such that they do not negatively-impact other VPS customers on same server;
- keep Ayera-installed anti-virus and security software running on VPS instance at all times;
- ensure any 3rd party software installed on VPS Instance by Client are properly licensed for use by Client and/or Client's customers;
- allow any and all Ayera-initiated hardware and/or software maintenance, upgrades, patches, or any other server modifications to be performed on a mutually-agreed to, reasonable schedule.