Service Terms and Conditions (Terms of Service/TOS)
This Service Agreement (“Agreement”) applies to the purchase from Your I.T. Consulting, LLC and its affiliates (collectively, “YOUR I.T. CONSULTING”) of all services (collectively, the “Services”) selected by Customer on the Order Form and the Domain Name Registration Form, as applicable, incorporated by reference and attached hereto, if any, except that if Customer is also ordering colocation and/or web site production services, Customer is also required to sign the agreements specific to those services. YOUR I.T. CONSULTING reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. YOUR I.T. CONSULTING shall use reasonable efforts to notify Customer of any planned changes to YOUR I.T. CONSULTING’s network or facilities that may adversely affect the Services provided hereunder.
This Agreement shall be for the term specified by Customer on the Order Form or Domain Name Registration Form or Your I.T. Consulting, LLC Quote, as applicable (the ÏInitial TermÓ). If no terms have been specified, the term of this Agreement shall be in-force as described below. The term is six (6) months continuous service. If termination by Customer occurs prior to the sixth (6th) month of continuous service, Customer shall pay the remainder of the term as liquidated damages. Except in the case of Dial-up customers, this Agreement will be automatically renewed, at the end of the Initial Term, on a month-to-month basis unless either party provides sixty (60) days written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all month-to-month extensions thereof are collectively referred to herein as the ÏTermÓ of this Agreement. Dial-up CustomersÌ contracts are on a month-to-month basis.
BILLING AND PAYMENT
Pricing: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Quote for services or Estimate provided, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and YOUR I.T. CONSULTING shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by YOUR I.T. CONSULTING by any governmental agency.
Terms Of Payment: Invoices are due and payable upon receipt. All payments shall be made in U.S. currency.
Service Continuation After Initial Term: The fees set forth in the Order Form or Domain Name Registration Form are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard YOUR I.T. CONSULTING rates for such services, without discount, determined month to month.
Service Charge: Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.
Suspension Or Interruption Of Service For Non-Payment: In the event Customer’s account becomes past due, or is otherwise deemed insecure, YOUR I.T. CONSULTING may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as YOUR I.T. CONSULTING deems necessary in order to resume receiving the Services. In addition, if YOUR I.T. CONSULTING in its sole discretion, deems Customer to be financially insecure, YOUR I.T. CONSULTING may require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as YOUR I.T. CONSULTING may require from time to time regardless of CustomerÌs then-current status or payment history. Failure to satisfy YOUR I.T. CONSULTING’s request for such action within timelines set by YOUR I.T. CONSULTING may result in immediate termination of service without further notice.
Customer shall at all times adhere to the YOUR I.T. CONSULTING Acceptable Use Policy located at http://www.internetdesigncompany.com/accept.asp, as amended from time to time by YOUR I.T. CONSULTING effective upon posting of the revised policy at the URL. Notwithstanding anything to the contrary contained herein, YOUR I.T. CONSULTING may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the YOUR I.T. CONSULTING Acceptable Use Policy. In the event YOUR I.T. CONSULTING takes corrective action due to a violation of the YOUR I.T. CONSULTING Acceptable Use Policy, YOUR I.T. CONSULTING shall not refund to Customer any fees paid in advance of such corrective action.
Customer may terminate this Agreement by giving YOUR I.T. CONSULTING at least sixty (60) days prior written notice. However, Customer remains obligated to pay all amounts remaining in the Initial Term, and if YOUR I.T. CONSULTING has purchased equipment on behalf of Customer, including but not limited to circuit and router, Customer shall assume responsibility for payments for such equipment, until paid in full.
In order to terminate early, CustomerÌs primary contact person on the account should notify YOUR I.T. CONSULTING of such request to do so. In the case of credit card orders, all termination requests should be signed by CustomerÌs primary contact person on the account who must provide the last four digits of the credit card on file with YOUR I.T. CONSULTING. However, YOUR I.T. CONSULTING shall not be liable for unauthorized termination of an account.
Any termination by YOUR I.T. CONSULTING or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. In the event that a Dial-up Customer primary account holder cancels service, service will be cancelled immediately, and the remainder of the monthly payment forfeited. YOUR I.T. CONSULTING reserves the right to terminate this Agreement without cause prior to the end of the term upon sixty (60) days written notice to Customer.
IP ADDRESS OWNERSHIP
YOUR I.T. CONSULTING shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by YOUR I.T. CONSULTING and YOUR I.T. CONSULTING reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
Customer expressly (i) grants to YOUR I.T. CONSULTING a license to cache the entirety of CustomerÌs Web Site, including content supplied by third parties, hosted by YOUR I.T. CONSULTING under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer intellectual property rights or any third partyÌs intellectual property rights.
BANDWIDTH AND/OR DISK USAGE
Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes per month for the Services Quoted to Customer on any Quote or Estimate. YOUR I.T. CONSULTING shall monitor the customerÌs usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, YOUR I.T. CONSULTING, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement. In the event that YOUR I.T. CONSULTING elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.
YOUR I.T. CONSULTING is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the ÏEquipmentÓ) offered under this Agreement that was manufactured by a third party. YOUR I.T. CONSULTING shall not be responsible for any changes in Service(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). Any malfunction or manufacturerÌs defects of Equipment either sold or provided by YOUR I.T. CONSULTING to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of YOUR I.T. CONSULTINGÌs obligations under this Agreement. Any rights or remedies Customer may have regarding the performance or compliance of Equipment are limited to those rights extended to Customer by the manufacturer of such Equipment. Customer is entitled to use any Equipment supplied by YOUR I.T. CONSULTING only in connection with Customer permitted use of the Service(s). Customer shall not resell, transfer, export or re-export any Equipment, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
DISCLAIMER OF WARRANTY
Customer acknowledges and agrees that YOUR I.T. CONSULTING exercises no control over, and accepts no responsibility for, the content of the information passing through YOUR I.T. CONSULTINGÌs host computers, network hubs and points of presence (the ÏYOUR I.T. CONSULTING NetworkÓ) or the Internet. NEITHER YOUR I.T. CONSULTING, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT YOUR I.T. CONSULTING PROVIDES. NEITHER YOUR I.T. CONSULTING, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. YOUR I.T. CONSULTING IS NOT LIABLE FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMERÌS CLIENTELE VIA THE SERVICE(S) PROVIDED BY YOUR I.T. CONSULTING.
Customer will indemnify, save harmless, and defend YOUR I.T. CONSULTING and all directors, officers, employees, and agents of YOUR I.T. CONSULTING (collectively Ïindemnified partiesÓ) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneysÌ fees) arising out of or relating to the use of the Services by Customer, including any violation of the YOUR I.T. CONSULTING Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark or service mark infringement, trade name infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
LIMITATION OF LIABILITY
IN NO EVENT SHALL YOUR I.T. CONSULTING BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF YOUR I.T. CONSULTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will YOUR I.T. CONSULTINGÌs liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Customer for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to Customer. In such jurisdictions, YOUR I.T. CONSULTINGÌs liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.
YOUR I.T. CONSULTING shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
Customer represents and warrants that CustomerÌs use of the Services shall not infringe the intellectual property or other proprietary rights of YOUR I.T. CONSULTING or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of YOUR I.T. CONSULTING (collectively, “YOUR I.T. CONSULTING Intellectual Property”) is vested in YOUR I.T. CONSULTING and/or in YOUR I.T. CONSULTING’s licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the YOUR I.T. CONSULTING Intellectual Property. Customer may not copy, modify or translate the YOUR I.T. CONSULTING Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the YOUR I.T. CONSULTING Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the YOUR I.T. CONSULTING Intellectual Property in any manner without the prior written consent of YOUR I.T. CONSULTING; provided, however, that nothing in this sentence would preclude Customer from using the YOUR I.T. CONSULTING Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to Customer.
Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party (“Confidential Information”). Except as provided in YOUR I.T. CONSULTINGÌs Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either partyÌs use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in receiving partyÌs possession, as evidenced by receiving partyÌs records; (c) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the receiving party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing party; or (f) is required by law to be disclosed.
Customer is responsible for its content residing on YOUR I.T. CONSULTING servers, and except as otherwise agreed with YOUR I.T. CONSULTING, for the backup thereof.
GOVERNING LAW. The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut.
ENFORCEMENT OF AGREEMENT
In the event it is necessary for YOUR I.T. CONSULTING to enforce its rights under this agreement, Customer agrees to pay all fees incurred by YOUR I.T. CONSULTING (including, but not limited to, attorney’s fees and collection agency fees)
AMENDMENT OR WAIVER
Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of YOUR I.T. CONSULTING. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.
ASSIGNMENT AND SEVERABILITY
This Agreement shall be binding upon and inure to the benefit of Customer, YOUR I.T. CONSULTING and our respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of YOUR I.T. CONSULTING, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
All notices to Customer hereunder shall be given at the Billing Address provided on the signature page hereto. All notices to YOUR I.T. CONSULTING hereunder shall be given to:
YOUR I.T. CONSULTING, LLC
P.O. Box 803
Wilbraham, MA 01095-0803
Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid.
This Agreement, and any other document or agreements specifically identified in this Agreement, supercedes all previous representations, understandings or agreements.
ACCEPTANCE OF SERVICES
ACCEPTANCE OF THIS AGREEMENT BY YOUR I.T. CONSULTING MAY BE SUBJECT, IN YOUR I.T. CONSULTINGÌS ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE YOUR I.T. CONSULTINGÌS ACCEPTANCE OF THIS AGREEMENT. USE OF THE YOUR I.T. CONSULTING NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT. CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE.