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.
Subject to below, if the Web Site Availability of customer's Web site
is less than 100%, CFS Hosting will issue a credit to customer in accordance
with the following schedule, with the credit being calculated on the basis
of the monthly service charge for the affected Services:
99.50 to 100.00% 0%
99.49% to 98.00% 10%
97.99% to 97.00% 25%
Less than 96.99% 50%
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.
Signature:___________________________ Date:____/____/20____
Please fax this signed form to:
Attn: Hosting Accounts
CFS Hosting LLC
p. 480-265-7873
f. 480-621-6055
|