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Creative Fire, Inc. provides hosting services
under the business name CFS Hosting LLC.
This Web Site Availability Service Level
Agreement (SLA) applies to you ("customer")
if you have ordered any of the following
Windows or Unix hosting account services
from CFS Hosting (the "Services")
and your account is current (i.e., not past
due) with CFS Hosting LLC: Windows or Unix
Shared Web Hosting Plans (variety
of plans available). As used herein,
the term "Web Site Availability"
means the percentage of a particular month
(based on 24-hour days for the number of
days in the subject month) that the content
of customer's Web site is available for
access by third parties via HTTP and HTTPS,
as measured by CFS Hosting LLC.
CFS Hosting's goal is to achieve 100% Web
Site Availability for all customers. However,
we do guarantee 99.9% uptime.
A guarantee is only as good as the issuer.
Some providers guarantee the uptime, but
offer no compensation for failure. Because
we can stand behind our guarantee, we provide
our clients with a 10% discount for the
month in which we fail to meet our 99.9%
Network Uptime Guarantee. Simply put, if
a client hosted on one of our virtual servers
registers less than 99.9% for the month,
then at the end of the month the client
will receive a 10% discount for that month.
Customer shall not receive any credits under
this SLA in connection with any failure
or deficiency of Web Site Availability caused
by or associated with: circumstances beyond
CFS Hosting, LLC's reasonable control, including,
without limitation, acts of any governmental
body, war, insurrection, sabotage, armed
conflict, 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, virus attacks or
hackers, failure of third party software
(including, without limitation, ecommerce
software, payment gateways, chat, statistics
or free scripts) or inability to obtain
raw materials, supplies, or power used in
or equipment needed for provision of this
SLA;
failure of access circuits to the CFS Hosting
LLC's Network, unless such failure is caused
solely by CFS Hosting LLC;
scheduled maintenance and emergency maintenance
and upgrades;
DNS issues outside the direct control of
CFS Hosting LLC;
issues with FTP, POP, or SMTP customer access;
false SLA breaches reported as a result
of outages or errors of any CFS Hosting
LLC measurement system;
customer's acts or omissions (or acts or
omissions of others engaged or authorized
by customer), including, without limitation,
custom scripting or coding (e.g., CGI, Perl,
HTML, ASP, etc), any negligence, willful
misconduct, or use of the Services in breach
of CFS Hosting LLC's Terms and Conditions
and Acceptable Use Policy;
e-mail or webmail delivery and transmission;
Outages elsewhere on the Internet that hinder
access to your account. CFS Hosting LLC
is not responsible for browser or DNS caching
that may make your site appear inaccessible
when others can still access it. CFS Hosting
LLC will guarantee only those areas considered
under the control of CFS Hosting LLC: CFS
Hosting LLC server links to the Internet,
CFS Hosting LLC's routers, and CFS Hosting
LLC's servers.
In order to receive a credit, customer must
make a request therefor by sending an email
message to hosting@cfshosting.com.
Each request in connection with this SLA
must include customer's account number (per
CFS Hosting's invoice) and the dates and
times of the unavailability of customer's
Web site and must be received by CFS Hosting
within 7 (7) business days after customer's
Web Site was not available. If the unavailability
is confirmed by CFS Hosting, credits will
be applied within two billing cycles after
CFS Hosting's receipt of customer's credit
request. Credits are not refundable and
can be used only towards future billing
charges.
Notwithstanding anything to the contrary
herein, the total amount credited to customer
in a particular month under this SLA shall
not exceed the total hosting fee paid by
customer for such month for the affected
Services. Credits are exclusive of any applicable
taxes charged to customer or collected by
CFS Hosting and are customer's sole and
exclusive remedy with respect to any failure
or deficiency in the Web Site Availability
of customer's Web site.
Credits are not refundable and can be used
only towards future billing charges.
===================================================================================================================
This Service Agreement ("Agreement")
applies to the purchase of all services
(collectively, the "Services")
ordered by you on the Order Form. CFS Hosting
LLC reserves the right to amend its Service
offerings and add, delete, suspend or modify
the terms and conditions of the Services,
at any time and from time to time, and to
determine whether and when any such changes
apply to both existing or future customers.
You shall pay the fees and other charges
for each Service as provided in the Order
Form. CFS Hosting LLC. reserves the right
to change rates by notifying you sixty (60)
days in advance of the effective date of
the change; provided that CFS Hosting LLC
shall not change any rates during the term
of any Term Commitment. Service charges
shall be invoiced in accordance with the
terms and conditions set forth both herein
and in the Service Order Form. All payments
shall be made in U.S. currency. You will
pay a late payment charge of $5.00 on the
outstanding balance of any invoice remaining
unpaid after the date upon which payment
is due ("Due Date"). Accounts
unpaid after the Due Date may have service
suspended or terminated. Such suspension
or termination shall not relieve you of
your obligation to pay the fee due. You
agree to pay CFS Hosting LLC. its reasonable
expenses, including attorney's fees and
collection agency fees, incurred in enforcing
its rights under this Agreement. You shall
pay all federal, state, and local sales,
use, value added, excise, duty and any other
taxes assessed with respect to the Services
and the sale of hardware, software or equipment
to you, except that taxes based on CFS Hosting
LLC's net income shall be the responsibility
of CFS Hosting LLC.
- Reactivation of a closed or suspended
account will be assessed a $19.95 reactivation
fee.
Domain name registration services shall
be for the term indicated on the registration
application. Domain name registration agreements
will be renewed and terminated on the terms
indicated above ("Additional Terms
for Domain Name Registrations"), and
in the Domain Name Registration Agreement,
Domain Name Dispute Policy and related agreements
that you will be asked to review and must
agree to during the registration process.
For all Services other than domain name
registration services, this Agreement shall
be for the term specified by you on the
Order Form. With regard to such other Services,
this Agreement will be automatically renewed
at the end of the initial term for the same
term specified by you on the Order Form
unless you provide sixty (60) days written
notice to CFS Hosting LLC of termination
of this Agreement.
You shall at all times adhere to the CFS
Hosting LLC Acceptable Use Policy located
at http://www.creativefire.net/policy.php,
as amended from time to time by CFS Hosting
LLC effective upon posting of the revised
policy at the URL. Notwithstanding anything
to the contrary contained herein, CFS Hosting
LLC 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 you of the CFS Hosting LLC
Acceptable Use Policy. In the event CFS
Hosting LLC. takes corrective action due
to a violation of the CFS Hosting LLC Acceptable
Use Policy, CFS Hosting LLC. shall not refund
to you any fees paid in advance of such
corrective action.
CFS Hosting LLC is acting only as a reseller
or licensor of any hardware, software and
equipment (collectively, the "Equipment")
offered under this Agreement that was manufactured
by a third party. CFS Hosting LLC shall
not be responsible for any changes in Services(s)
that cause Equipment to become obsolete,
require modification or alteration, or otherwise
affect the performance of the Services.
Any malfunction or manufacturer's defects
of Equipment either sold, licensed or provided
by CFS Hosting LLC to you or purchased directly
by you used in connection with the Service(s)
will not be deemed a breach of CFS Hosting
LLC's obligations under this Agreement.
Any rights or remedies you may have regarding
the ownership, licensing, performance or
compliance of Equipment are limited to those
rights extended to you by the manufacturer
of such Equipment. You are entitled to use
any Equipment supplied by CFS Hosting LLC
only in connection with your permitted use
of the Services. You shall use your best
efforts to protect and keep confidential
all intellectual property provided by CFS
Hosting LLC to you through any Equipment
and shall make no attempt to copy, alter,
reverse engineer, or tamper with such intellectual
property or to use it other than in connection
with the Services. You 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. In the event that CFS Hosting
LLC provides Equipment to you free of charge,
upon the termination of this Agreement for
any reason, you, at your election, may:
(a) purchase the Equipment at the rate of
75% of its original retail value; or (b)
return, at your costs, the Equipment to
CFS Hosting LLC. in the same condition as
furnished to you, excepting normal wear
and tear. If you do not purchase or return
the Equipment within ten (10) business days
of the termination of the Agreement, CFS
Hosting LLC will invoice you, and you agree
to pay, for the Equipment at the rate of
75% of its original retail value.
CFS Hosting LLC. shall maintain and control
ownership of all IP numbers and addresses
that may be assigned to you by CFS Hosting
LLC. and CFS Hosting LLC reserves, in its
sole discretion, the right to change or
remove any and all such IP numbers and addresses.
You expressly (i) grant to CFS Hosting LLC
a license to cache the entirety of your
Web Site, including content supplied by
third parties, hosted by CFS Hosting LLC
under this Agreement and (ii) agree that
such caching is not an infringement of any
of your intellectual property rights or
any third party's intellectual property
rights.
You agree that you shall not use excessive
amounts of CPU processing on any of CFS
Hosting LLC.'s servers. Any violation of
this policy may result in corrective action
by CFS Hosting LLC., in its sole discretion,
including assessment of additional charges,
disconnection or discontinuance of any and
all Services, or termination of this Agreement.
In the event that CFS Hosting LLC. elects
to take any corrective action, you shall
not be entitled to a refund of any fees
paid in advance prior to such corrective
action.
You agree that bandwidth and Disk usage
shall not exceed the number of megabytes
per month for the Services ordered by you
on the Order Form. This usage shall be monitored
and measured by CFS Hosting LLC. Any bandwidth
or Disk usage in excess of the agreed upon
number of megabytes per month may result
in corrective action by CFS Hosting LLC,
in its sole discretion, including assessment
of additional charges, disconnection or
discontinuance of any and all Services,
or termination of this Agreement. In the
event that CFS Hosting LLC elects to take
any corrective action, you shall not be
entitled to a refund of any fees paid in
advance prior to such corrective action.
You will be solely responsible for the development,
operation and maintenance of your online
store and products and all contents and
materials appearing online or on your products,
including without limitation (a) the accuracy
and appropriateness of content and materials
appearing within the store or related to
your products, (b) ensuring that the content
and materials appearing within the store
or related to your products do not violate
or infringe upon the rights of any third
party, and (c) ensuring that the content
and materials appearing within the store
or related to your products are not libelous
or otherwise illegal. You will be solely
responsible for the final calculation and
application of shipping and sales tax. You
will also be solely responsible for accepting,
processing, and filling any customer orders,
and for handling any customer inquiries
or complaints arising therefrom. You are
also responsible for the security of any
customer credit card numbers and related
customer information you may access as a
result of conducting electronic commerce
transactions through your Web Site. You
are required as a merchant to purchase and
maintain a Secure Certificate (recommended
128bit encryption) for the purpose of to
ensure the security of your customers data
You will keep all such information confidential
and will use the same degree of care and
security as you use with your confidential
information.
You acknowledge and agree that CFS Hosting
LLC exercises no control over, and accepts
no responsibility for, the content of the
information passing through CFS Hosting
LLC's host computers, network hubs and points
of presence (the "CFS Hosting LLC")
or the Internet. NEITHER CFS Hosting LLC,
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 CFS Hosting LLC PROVIDES.
NEITHER CFS Hosting LLC, 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 SERVICED OR MERCHANDISE CONTAINED
IN OR PROVIDED THROUGH THE SERVICES. CFS
Hosting LLC IS NOT LIABLE FOR THE CONTENT
OF ANY DATA TRANSFERRED EITHER TO OR FROM
YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS
VIA THE SERVICE(S) PROVIDED BY CFS Hosting
LLC.
You will indemnify, defend and hold harmless
CFS Hosting LLC and its employees, officers,
directors and agents (collectively "indemnified
parties") 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 attorneys'
fees) threatened, asserted, or filed by
a third party against any of the indemnified
parties arising out of or relating to the
use of the Services, including any violation
of the CFS Hosting LLC Acceptable Use Policy.
IN NO EVENT SHALL CFS Hosting LLC OR ITS
EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS,
THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS OR THE LIKE BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA
OR USE, BY YOU OR ANY THIRD PARTY, WHETHER
IN AN ACTION IN CONTRACT OR TORT OR STRICT
LIABILITY OR OTHER LEGAL THEORY, EVEN IF
CFS Hosting LLC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. In no event
will CFS Hosting LLC's 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 you 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.
CFS Hosting LLC 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 interruption
or delay in telecommunications or third
party services (including DNS propagation),
failure of third party software or hardware
or inability to obtain raw materials, supplies,
or power used in or equipment needed for
provision of the Services.
The validity, interpretation, enforceability,
and performance of this Agreement shall
be governed by and construed in accordance
with the laws of the State of Illinois,
without regard to its conflict of laws principles.
Except as otherwise provided herein, this
Agreement may not be amended except upon
the written consent of you and CFS Hosting
LLC. 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.
This Agreement shall be binding upon and
inure to the benefit of you, CFS Hosting
LLC and our respective successors, and assigns.
You may not assign this Agreement without
the prior written consent of CFS Hosting
LLC. 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.
By engaging in any activity that infringes
or misappropriates the intellectual property
rights of others, including but not limited
to copyrights, trademarks, service marks,
trade secrets, software, and patents held
by other individuals, corporations or other
entities. Our Company is required by law
to respond immediately to a copyright infringement
and block access to customer content upon
receipt of an official notice of a copyright
violation. For more information on the Digital
Millennium Copyright Act (DMCA), click on
the following link: http://lcweb.loc.gov/copyright/legislation/dmca.pdf.
Common instances leading to intellectual
property violations involve the unauthorized
use of pictures, framing another's website
within your own without permission, and
using another's trademarks without their
permission to promote competing goods or
services.
When we receive proper notice that your
website infringes the copyrights of another,
we have a legal obligation, per Title 17
United States Code, Section 512, to "respond
expeditiously to take the material down
or block access to it." The procedure
we follow, given our reading the DMCA [Title
17 United States Code, Section 512(c)(3)],
is as follows:
If we receive "proper notification"
(or court order) of an infringing website,
we "deactivate" the website and
send an email notice to both our customer
and the individual or organization issuing
the "proper notification."
If we receive "notification,"
but it is not proper, we will use our best
judgment to ascertain whether the website
does indeed infringe on the copyrights asserted
by the notification. If we deem the website
to infringe, we follow the activities in
Step 1 above. If we cannot validate infringing
activity, we will not "deactivate"
the website, but instead send an email notice
to both Customer and the individual or organization
issuing the "notification" (hereinafter
"Complaining Party") with a statement
that we opted to not "deactivate"
the website because notice was not proper,
and we could not determine copyright infringement;
and we then request either "proper
notification" or a court order.
If we do "deactivate" your website
because of "proper notification"
(not court order), you can submit a "proper
counter notification" to us indicating
that "the material was removed or disabled
through mistake or misidentification,"
we have 10-14 business days (legally, although
we will attempt to do this in 24 hours or
less) to reactivate your website after receiving
proper counter notification, assuming you
(or we) have not received a court order
to the contrary.
Proper Notice of Copyright Infringement:
[Title 17 United States Code, Section 512(c)(3)(A)].
For "proper notice," we require
(1) a physical or electronic signature of
copyright holder or authorization to act
on behalf the copyright holder; (2) Identification
of the copyright work alleged to be infringed
on the website; (3) Identification of the
material that is infringing or the subject
of infringing activity; (4) Information
necessary for us to contact the Complaining
Party; (5) A statement that the Complaining
Party has a good-faith belief that material
alleged to be infringing is not authorized
by the copyright holder; and (6) A statement
that "the information in the notification
is accurate, and under penalty of perjury,
that the Complaining Party is authorized
to act on behalf of the owner of an exclusive
right that is allegedly infringed."
Proper Counter Notification:
[Title 17 United States Code, Section 512(g)(3)].
For "proper counter notification,"
we require (1) Your physical or electronic
signature; (2) Identification of the material
which has been removed, disabled or deactivated;
(3) A statement "under penalty of perjury
that you have a good faith belief that the
material was removed or disabled as a result
of mistake or misidentification of the material
to be removed or disabled;" and (4)
Your name, address, telephone number and
a statement that you "consent to the
jurisdiction of Federal District Court for
the judicial district in which your address
is located, or if your address is outside
of the United States, for the United States
District Court, District of Utah, and that
you will accept service of process from
the person who provided notification under
subsection (c)(1)(C) or an agent of such
person."
Deactivation: Deactivation
does not necessarily mean deletion. Unless
under court order, or if we judge your website
content to contain prohibited content, we
will not delete your website content when
deactivated because of "proper notification"
of copyright infringement. Your website
content will remain on our servers for as
long as your account remains in good standing
with Company.
Trademark Infringement is any use of a trademark,
service mark, trade dress or other identifying
mark, word, phrase, color, picture or layout
that could lead to a likelihood of confusion
between you and the legitimate holder of
a valid trade or service mark. For the purposes
of this AUP, a "valid trade or service
mark" is defined as another entity
that either has a registered mark in a WTO
signatory country (http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm),
or can prove prior use. There are relatively
few "safe harbor" provisions or
exceptions in United States Trademark law
that limit our liability to a Customer's
infringing activity of a trademark. Therefore,
we take notices of alleged trademark infringement
seriously, and with few exceptions, will
require Customers to quickly comply. There
are fair use exceptions to trademark protections.
We will allow Customer to use another's
trademark in fair use situations, but we
apply a rather restrictive view on the meaning
of fair use. If there is any possibility
of a likelihood of confusion as to the originator
of the offerings (product, service or information)
on your website, we will side with the complaining
party.
Alleged Trademark Infringement Procedure:
When our Company receives notice of alleged
trademark infringement activity, we will
act as follows:
Submit a notice to the Customer.
If we believe there is any merit to the
notice, we will give the Customer a predetermined
amount of time (usually 48 hours) to take
corrective action or provide unequivocal
proof of either (a) permission to use trademark,
or (b) that the Customer's use of trademark
is superior to complaining party.
If the Customer fails to take corrective
action, or fails to respond with unequivocal
proof as required above, we will deactivate
the account.
(printer
friendly version) - please print, sign and fax to the information below.
Please fax this signed form to:
CFS Hosting LLC
Attn: Hosting Accounts
p. 480-265-7873
f. 480-621-6055
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