EvolveTheBrand® Terms of Service Agreement
This Web Site Agreement ("Agreement") is by and between EvolveTheBrand, and you, your heirs, assigns, agents and contractors ("You") and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of EvolveTheBrand's Web Site services (collectively, the "Services") and represents the entire agreement between You and EvolveTheBrand. By using the Services, You acknowledge You have read, understand and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including the Universal Terms of Service which EvolveTheBrand may establish from time to time.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with EvolveTheBrand, whether or not the transactions were in Your behalf. You acknowledge that EvolveTheBrand's acceptance of any application made by You for services provided by EvolveTheBrand will take place at the Internet Corporation for Assigned Names and Numbers ("ICANN").
1. Description of Service
EvolveTheBrand currently provides the Services to its customers for a monthly fee. EvolveTheBrand will host Your web site on EvolveTheBrand's servers, provided, however, You abide by the terms and conditions set forth herein and in each of EvolveTheBrand's policies and procedures.
License of Your Web Site Content
EvolveTheBrand grants to You, and You accept from EvolveTheBrand, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your web site content in connection with EvolveTheBrand's performance or enforcement of this Agreement.
Availability of Services
Subject to the terms and conditions of this Agreement, EvolveTheBrand shall attempt to provide the Services for twenty-four (24) hours per day, seven (7) days per week throughout the term of this Agreement. You agree that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation:
- equipment malfunctions;
- periodic maintenance procedures or repairs that EvolveTheBrand may undertake from time to time; or
- causes beyond the control of EvolveTheBrand or that are not reasonably foreseeable by EvolveTheBrand, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures.
You agree EvolveTheBrand has no control of availability of the Services on a continuous or uninterrupted basis.
You further agree that as a normal course of its business, it may be necessary for EvolveTheBrand to migrate its servers. As a result, even though You may have a dedicated IP, You may be assigned a different IP number. EvolveTheBrand does not warrant that You will be able to consistently maintain Your given IP numbers.
Service Availability Guarantee
EvolveTheBrand offers a service uptime guarantee for the Services of 99.9% ("Service Uptime") of available time. If EvolveTheBrand fails to maintain this level of service availability, You may contact EvolveTheBrand and request a credit of 5% of Your monthly hosting fee from EvolveTheBrand for that month. The credit may be used only for the purchase of further products and services from EvolveTheBrand, and is exclusive of any applicable taxes. The credit does not apply to service interruptions caused by:
- periodic scheduled maintenance or repairs EvolveTheBrand may undertake from time to time;
- errors caused by You from custom scripting or coding;
- outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email;
- causes beyond the control of EvolveTheBrand or that are not reasonably foreseeable by EvolveTheBrand; and
- outages related to the reliability of certain programming environments.
Total Service Uptime shall be solely determined by EvolveTheBrand and shall be calculated on a monthly basis.
Web Site Content
You shall be solely responsible for providing, updating, uploading and maintaining Your web site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by You or registered on behalf of You in connection with the Services. Notwithstanding anything in this Agreement to the contrary, in no event shall Your web site consist of the following: search results, or pages containing any of the following types of content:
- pornographic, obscene or excessively profane content;
- content intended to advocate or advance computer hacking or cracking;
- illegal activity;
- drug paraphernalia; or
- hate, violence or racial or ethnic intolerance.
Except as may be limited by specific products or services, any SSL certificate You purchase from EvolveTheBrand or its affiliates to use in conjunction with the Services provided by EvolveTheBrand, is intended for its specific use as described in the Subscriber Agreement and will not be exported from the server to be used with any other web hosting service. If You are using an SSL certificate on a web site hosted by EvolveTheBrand, EvolveTheBrand will generate and securely store a corresponding private key.
For security reasons, at no time will EvolveTheBrand release Your private key, even if You request. If You wish to export Your SSL certificate for use on a non- EvolveTheBrand server, You will need to make a request to EvolveTheBrand no earlier than thirty (30) days after Your initial SSL subscription began. After Your account with EvolveTheBrand has been cancelled, You will have thirty (30) days to follow the registration process and request a re-key of the SSL certificate, or Your SSL certificate will become invalid.
Information Shared with Partners
As a condition of purchasing and using the Services, You acknowledge and agree EvolveTheBrand may provide Your personal information to their partners, as required to provide the plans for which You are purchasing.
2. Your Obligations
You acknowledge and agree EvolveTheBrand shall have the right to seek justification in connection with Your use of the Services, specifically Your purchase of IP addresses, and You shall be obligated to provide any and all information reasonably sought by EvolveTheBrand pursuant to such justification. You acknowledge and agree You are required to begin using at least ninety percent (90%) of Your purchased IP addresses within thirty (30) days of assignment of such IP addresses to You. In the event You do not begin using at least ninety percent (90%) of Your assigned IP addresses, You acknowledge and agree EvolveTheBrand shall have the right to reclaim any unused IP addresses after the expiration of such thirty (30) day period. In connection with such purchase, You acknowledge and agree that Your name and justification may be disclosed to certain registries, including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.
Upon the expiration of Your initial hosting service term, Your hosting service shall automatically renew for the same period of time and Your payment method shall be charged for the renewal term on the renewal date. You acknowledge and agree that in the event You do not desire to automatically renew Your hosting services for the same period of time, it is Your responsibility and obligation to alert EvolveTheBrand in writing of the change and new payment method or cancellation 30 days prior to contract end.
You represent and warrant to EvolveTheBrand that:
- Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation;
- infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and
- that You own Your web site content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your web site.
You also warrant that the web site being hosted by EvolveTheBrand will not be used in connection with any illegal activity. If You are hosting Your web site on EvolveTheBrand's servers, You are responsible for ensuring there is no excessive overloading on EvolveTheBrand's DNS or servers. In the event You exceed Your allotted bandwidth, compute cycles or disk space and thereby overload EvolveTheBrand's DNS or servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use EvolveTheBrand's servers and Your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and EvolveTheBrand reserves the right to remove sites containing information about hacking or links to such information. Use of Your web site as an anonymous gateway is prohibited. EvolveTheBrand prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by EvolveTheBrand. You agree EvolveTheBrand reserves the right to remove Your web site temporarily or permanently from its servers if EvolveTheBrand is the recipient of activities that threaten the stability of its network. You acknowledge and agree EvolveTheBrand has the right to terminate Your Services in its sole discretion and for any reason, including, but not limited to, Your failure or unwillingness to comply with the terms and limitations of this Agreement, specifically, the content and material restrictions set forth in this Agreement. You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to:
- disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, EvolveTheBrand, in its sole discretion, may permit You, if You have a legitimate purpose and after request, to send more email than EvolveTheBrand's standard SMTP relay limit;
- disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
- disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
- create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
- export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
- interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization;
- disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program;
- engage in any other activity deemed by EvolveTheBrand to be in conflict with the spirit or intent of this Agreement or any EvolveTheBrand policy; or
- use Your server as an "open relay" or similar purposes.
EvolveTheBrand prohibits the running of a public recursive DNS service on any EvolveTheBrand server. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. EvolveTheBrand actively scans for the presence of public DNS services and reserves the right to remove any servers from the network that violate this restriction.
Storage and Security
At all times, You shall bear full risk of loss and damage to Your web site and all of Your web site content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You agree You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the Site or any of Your web site content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to:
- prevent any loss or damage to Your web site content;
- maintain independent archival and backup copies of Your web site content;
- ensure the security, confidentiality and integrity of all Your web site content transmitted through or stored on EvolveTheBrand servers; and
- ensure the confidentiality of Your password.
EvolveTheBrand's hosting servers are not an archive and EvolveTheBrand shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The Services are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be considered as one. EvolveTheBrand shall have no liability to You or any other person for Your use of the Services in violation of these terms. You shall at all times use the Services as a conventional and/or traditional web site. You shall not use the Service in any way, in EvolveTheBrand's sole discretion, that shall impair the functioning or operation of EvolveTheBrand's Services or equipment. Specifically by way of example and not as a limitation, You shall not use the Services as: (i) a repository or instrument for placing or storing archived files; and/or (ii) placing or storing material that can be downloaded through other web sites. You acknowledge and agree that EvolveTheBrand has the right to carry out a forensics examination in the event of a compromise to Your server or account.
If You purchase MS SQL or Managed Backups, You hereby authorize EvolveTheBrand to log into Your server for purposes of installing and configuring the software.
In the event You terminate, moving Your web site off of the EvolveTheBrand hosting servers is Your responsibility. EvolveTheBrand will not transfer or FTP Your web site to another provider for free. In the event Your use of the Services is terminated, EvolveTheBrand will not transfer or manage Your Services or Your web site content.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EvolveTheBrand, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT EvolveTheBrand IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, You SPECIFICALLY ACKNOWLEDGE AND agree that any cause of action arising out of or related to this Site or the Services found at this Site must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.
IN ADDITION, You SPECIFICALLY ACKNOWLEDGE AND agree that in no event shall EvolveTheBrand’s total aggregate liability exceed the total amount paid by you for the particular ServiceS that ARE the subject of the cause of action.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
You agree to protect, defend, indemnify and hold harmless EvolveTheBrand and its officers, directors, employees, and agents, from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by EvolveTheBrand directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the corporate policies and/or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
FEES AND PAYMENTS
You agree to pay any fees due for Services purchased at this Site at the time you order the Services. All fees are non-refundable unless otherwise expressly noted, even if your Services are suspended, terminated, or transferred prior to the end of the Services term. EvolveTheBrand expressly reserves the right to change or modify its prices and fees at any time and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications or (ii) your electronic acceptance of this Agreement after such changes or modifications have been made.
Charges for Custom Services
When EvolveTheBrand determines requested updates falls out of the scope of the basic plan, charges shall apply for Your use in the form of Custom Support Services (hereinafter referred to as "CSS"), and EvolveTheBrand shall charge You for Your use of the CSS on a thirty (30) minute incremental basis. Text or formatting updates are billed at the rate of $40.00 an hour. Technical updates and custom programming are billed at the rate of $75.00 an hour. Furthermore, when EvolveTheBrand determines a fee will be assessed for Your use of the CSS, EvolveTheBrand reserves the right to charge any or all of the fees prior to the commencement of any work being performed.
No third party software is allowed for any reason on any EvolveTheBrand platform.
In case of cancellation of the project by the client, client agrees to pay for time spent by EvolveTheBrand on the project to the point of cancellation. Client agrees to pay 100% of all production and 3rd-party fees authorized by the client at the point of cancellation. Written notification of the cancellation is required. Hosting fees will not be refunded for any partial months, but only for any pre-paid months not yet began.
Upon cancellation, client is entitled to a copy of all client documents and content of the website (i.e. text, html, css, and images). Software and source code used to build and implement the website (including the EvolveTheBrand CMS System) are the intellectual property rights solely of EvolveTheBrand, and client shall make no claim at any time, regardless of service level, to such property rights. If Client decides to cancel services with EvolveTheBrand, it is not the responsibility of EvolveTheBrand to ensure all functionality will continue to work if transferred to an alternative server; nor is it the responsibility of EvolveTheBrand to perform the transfer.
Acceptance of EvolveTheBrand® Terms of Service
The above fees, specifications, and conditions are satisfactory and are hereby accepted.
Printed Name: ________________
Printed Name: _________________