Terms for this Website and Contracts
Hutton Advertising, LLC is incorporated in the state of Tennesse and provides customers with a wide variety of sign products, services, online design tools and other services to create customized sign products, as well as web hosting, website development, and Search Engine Optimization Services (collectively, the “Services”).
The use of this site and the Services is governed by the terms and conditions set forth below and any signed contract between the parties. Please read them carefully.
Who is covered by these Terms and Conditions:
Your use of this site or the Services indicates Your acceptance of these terms and conditions. You also Accept these terms and conditions by virtue of signing a contract with Hutton Advertising, LLC, if the signed contract references these terms and conditions. If the signed contract does not reference this document, then the applicable conditions below have been incorporated into the signed contract.
This document has the following sections
- Visitors (Casual and Clients)
- Standard Terms and Conditions (including payments)
- Outdoor Advertising and Media Buying Conditions
- Website Hosting
Terms for Visitors to the Website and Online Services
Additional Terms: The Standard Terms and Conditions also apply unless there is a conflict between the terms, in which case, these additional terms for these services shall prevail. The definitions in the Standard Terms shall apply as if that section was written above this section. (We have placed this section towards the top of the page for the convenience of website visitors.)
Copyright All Content included on this site, including without limitation, text, graphics, logos, trademarks, trade names, button icons, images, pre-designed templates, sounds, software, processing and other functionality, and all other material placed by Us (collectively called the “Content”), and the collection, arrangement and assembly of the Content, is the property of or licensed by Us and is protected by U.S. and international copyright laws. The Content on all pages of this Hutton Advertising website is provided solely for the use of Our customers to interact with Our and may not be used by You, or any other person or entity, or for any other purpose. Users do not receive any copyright in or to the Content itself. No interest in the Content, whether in whole or in part, may be sold, assigned, encumbered, licensed or otherwise transferred by You or any third parties. Neither Your use of the Content nor the creation of products or materials using such Content create joint authorship, joint ownership or “works made for hire” with Us in or regarding such Content.
Trademarks All service marks, trademarks, trade name, trade dress and other indicia of source used herein and otherwise by Us (collectively called the “Marks”) are proprietary to Us or other respective owners that have granted Us the right and license to use such Marks. Users do not receive any trademark rights or any other rights in or to the Marks. Users do not receive any trademark rights in or to the Content.
Links to External sites: This site may contain links to sites that are owned, operated and maintained by third parties, which are provided as a convenience to You. These linked sites are not under Our control, and We are not responsible for the accuracy of the content on such sites, or the privacy practices of such sites, We do not monitor nor review the content of such sites, and You expressly understand that Your access by link to such sites is at Your own risk.
Additional Limitations and Disclaimers
In no event will We be liable for, nor make any adjustment, refund or credit of any kind for, any loss, corruption, delay, misprint, non-print, inclusion, omission, misinformation, other direct or indirect damages, or failure to provide the Services offered through this website (any of the foregoing, “Service Failure”) to the extent caused by or resulting from:
- Your acts, defaults or omissions;
- Your violation of any of the terms and conditions contained in these Terms & Conditions, as amended from time to time;
- Viruses, worms, Trojan horses and other forms of harmful code that are not detected or removed using Our standard virus-detection procedures;
- Criminal acts, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotions, war, national or local disruptions in electronic and transportation networks, failures of Internet service providers, weather phenomena, strikes, natural disasters, and disruption or failure of communication and information systems;
- Loss, corruption or irretrievability of, or damage to, Your personal information, User-provided Materials or information regarding the products used or stored by Us;
- Acts, defaults or omissions of any person or entity other than Us, including Our compliance with verbal or written instructions from You;
- Our provision of advice, assistance or guidance on this site does not constitute acceptance of liability.
All claims should be resolved by contacting Us. Failure to contact Us directly will cause a delay in the processing of any claim and will result in a delay in processing Your claim, which could cause You to lose the ability to receive compensation for loss as provided in these terms and conditions.
Performance of any Services will not cause Us to be deemed Your, or anyone’s, agent for any purpose.
Additional Termination Policy This policy is in addition to the Standard Terms and Conditions Termination policy. In the event that We learn of, or has reasonable grounds to suspect, that Your registration information is inaccurate, or that activity in violation of these Terms & Conditions has occurred within Your account, We can suspend or terminate Your access to Your account or the Services without notice and refuse to authorize its future use. Repeated violations of these Terms & Conditions will result in immediate termination. In addition, We reserve the right to discontinue the Services at any time without reason or advance notice to You.
Standard Terms and Conditions
We/Us/Our refers to Hutton Advertising, LLC, its Officers, directors, employees, shareholders, agents, affiliates, subsidiaries, suppliers, representatives, franchisors and franchisees
Our Address for Contractual Correspondence: Hutton Advertising, LLC, 73 White Bridge Road, Suite 103-136, Nashville, TN, 37205, 615-601-2226
You/Your refers to the User of the Services or site, the Advertiser; or if the Advertiser has hired an Agency to act on its behalf, then the terms refer to both the advertiser and the agency both jointly and severally
Your Address for Contractual Correspondence: We shall address all contractual correspondence to the address stated on any signed contract. If no signed contract exists, then You shall supply Us an address for Our records. If We are unable to effectively communicate contractual information, We may terminate services immediately with no further recourse by You.
Third Party Participants refers to Production Advertising and Out of Home Companies who will produce and/or display the requested Outdoor advertising. It also refers to any third party with whom We contract to provide services directly to Your account in which the services provided to You are separable from other services . It does not refer to contracts Wemake with vendors who provide Us services in bulk.
OOH Company refers to the Outdoor Advertising Company(ies) providing advertising services.
This Contract/Agreement refers to the terms and conditions of this document and/or to the terms and conditions of signed contract.
Intellectual Property shall use the standard legal definition. The layman’s description includes any and all pictures, programming, copyrighted works, trademarks, and anything created by an individual or company and anything in which a person has added creative value to another work.
Refund Policy: There are no refunds, unless they are allowed by Your specific contract and except as provided in the Terms and Conditions Website Hosting. The method of making the Refund will be solely at Our Discretion and will likely be by check.
Delivery Policy: Website hosting delivery and contract period begins no earlier than the service is available to you. We may notify you of the availability via email. All advertising contracts will specify the term of delivery. In most advertising cases, Your advertising materials will be delivered to the installer, who will put them up on Our behalf.
Terms of Payment and Fees: You agree to pay Us appropriate payment for the Services received from Us as invoiced. Payment may be by check, ACH, Credit Card, Debit, or cash. You agree to provide Us with up-to-date billing information including an appropriate email address for delivery of invoices. All invoices will be emailed to you. No receipts or invoices will be sent by regular mail. Payment terms are on the invoices. After the due date has passed the payment shall be considered overdue. Once during each subsequent month that payment has not been received, We, at Our sole discretion will either assess additional late fees on the balance, terminate the Services, and/or remove resources provided for you benefit. Late fees shall be assessed at 1.5% per month or $5.00 at the time of assessment, which ever is larger. Hosting shall be billed monthly. However, invoice amounts less than $50 which are not on an automatic draft or credit card payment shall be billed quarterly. Payments by credit card will be assessed a 2.8% convenience fee where allowed by Our payment gateway. Otherwise, payments by cash will receive a 3% discount.
Nature of Relationship: You do not create a Contractual Relationship of any soft by simply visiting the public portions of Our website, but you agree to the Standard Terms and Conditions as listed in this document as well as the section “Terms for Visitors to the Website”
By signing a contract or, alternatively, by allowing Us to provide Services to you (such as allowing Us to purchase media or perform an advertising campaign, host programming, website(s), email or other similar services on Your behalf) , You agree to the Standard Terms and Conditions of this document as well as any additional terms related to the particular Service We Provide to You.
By signing a contract, the person signing the document indicates that either (i) they are the Advertiser(You) and that the signatory is authorized to sign on behalf of the Advertiser (You) and that the Advertiser (You) agree to be bound by this contract and The Third Party Participant contracts which We will sign on Your behalf according to the above terms or (ii) They are an Agency and they are authorized to enter this transaction on behalf of both Advertiser and Agency (You) and that Advertiser and Agency (You) agree to be bound by this contract and The Third Party Participant contracts which We will sign on Your behalf according to the terms of Your signed contract. Advertiser and Agency (You) are both jointly and severally liable for all terms and payments set forth in this contract.
Nature of Third Party Participant Contracts: Our standard terms and conditions include the terms and conditions of the Third Party Participant Contracts for everything except for some payments. For most outdoor advertising contracts and media buys, the Third Party Participant has the authority to collect payments from you if You do not pay Us in a timely manner according to the Invoicing schedule for Your contract.
Amendments to this Document: We reserve the right to make modifications, alterations or updates to this site and these Terms & Conditions at any time and without notice to users. You accept the affirmative obligation to periodically review whether or not these Terms & Conditions have changed, and Your continued use of this site shall be deemed an acceptance and agreement to be bound by such modifications, alterations or updates. However, if the amendment to these terms conflicts with a signed contract, the conditions of the signed contract will prevail for the duration of that contract. However, renewal of said contract may be contingent upon accepting the new terms, unless other conditions are negotiated.
Confidentiality. You and We understand that in connection with the provision of the Services, You may find it necessary to disclose to Us business processes, client data, and/or other sensitive business information that You consider confidential or proprietary. You agree to clearly mark any such information as confidential before its delivery to Us. In Connection with any such confidential information, We agree to make reasonable efforts to maintain its confidentiality. We will be responsible for any special, incidental, or consequential damages suffered by You as a result of Our breach of the provisions in this Agreement or any other cause.
You acknowledge that We may provide You with information including Our intellectual Property, that may be confidential or proprietary. You agree to use reasonable efforts to maintain the confidentiality of such information.
These confidentiality agreements shall survive the termination of this Contract and may be released via the waiver requirements
No Warranty or Liability:
We do not guarantee work product or provide any express or limited warranties. Any guarantees and warranties are provided solely by the Third Party Participants to You. We are released from any liability resulting from errors and/or breach on the part of the Third Party Participants. You agree to hold Us harmless against liability arising out of the content or appearance of the advertisement.
The Information, content, Services, products and materials contained or offered through Our website, including without limitation, text, graphics, and links, are provided on an “As Is” basis with no warranty. Use of the information content Services, products, and materials on this site is at Your risk.
We expressly disclaim to the fullest extent permitted by law, any all warranties, whether expressed or implied, statutory or otherwise, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranty that Our services and information will be current, uninterrupted, secure, virus free, or error free. We make no representations or warranties as to the accuracy, reliability, or security of any communications or internet services or transmissions. We are not responsible or liable for any damage or losses to computer system, data, or business that results for the use of communications or internet services or transmissions.
You agree that under no circumstances shall We be liable for any consequential, special, direct, indirect, exemplary, incidental, or punitive damages of any kind, including but no limited to lost profits, or lost data, regardless of whether We have been previously advised of the possibility of such damages.
Notwithstanding any provision to the contrary in this Agreement, Our aggregate liability in connection with this Contract and Services provided hereunder, regardless of whether the alleged liability is based on a contract ort or otherwise, shall not exceed the aggregate fees paid by You to Us for the Services. The foregoing states Our entire potential liability related to This Contract and the Services provided hereunder.
Conflicts between these terms and signed contracts: In the event there is a conflict between a signed contract and these provisions, the terms and conditions of the signed contract will prevail. In the event there is a special instructions on a signed contract, then the terms and conditions of the of the special instructions shall prevail. If there is a conflict between these standard terms conditions and the terms and conditions for a particular service below, then the terms and conditions of that service will apply.
Acknowledgment Regarding Reproductions: You acknowledge that the Third Party Participants and We may use photographs or other reproductions of Your copy to promote The Third Party Participants’ and Our services and releases the Third Party Participants and Us from any claims regarding same.
Notices. Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, or (c) by a commercial overnight courier that guarantees next day delivery and provides a receipt. All notices shall be addressed to the appropriate “Address for Contractual Correspondence” as noted at the top of This Agreement. You agree to provide a regular mail address and complete telephone number for Us to communicate changes in agreements to you. You shall notify Us with corrected information, any time this contact information changes.
Termination/Breach: If You breaches this contract, this contract may be accelerated and enforced in full and We shall be entitled to all costs of enforcement from You, including attorney’s fees and/or court costs. You may, upon notice to Us, terminate this contract at any time upon material breach by Us (with a 30 day notice and opportunity to cure). Neither party will have any liability to the other upon breach or termination, except as provided in this Paragraph and “No Warranty or Liability”, “Taxes”, and “Indemnification.” You may not seek specific performance or any other equitable remedy related to this contract.
Assignment: During the term of this contract, if Your business is sold, transferred or assigned, or the Advertiser obtains a new agency, You shall require Your successors-in-interest to be bound by this Agreement and they shall continue to be liable to Us and the The Third Party Participants for all obligations herein stated unless take-over contracts are presented to and accepted by Us in Our sole discretion. Your agents may not take over the The Third Party Participant contract(s) directly with the The Third Party Participants, but instead must fulfill and renew them through Us. This contract and any renewals are fully assignable by Us.
Taxes: You will be responsible for federal, state and local taxes in respect of this contract. As of February 11, 2019, the State of Tennessee charges sales tax on all programming provided on servers located in Tennessee, though hosting of a website is considered non-taxable. Production of Advertising copy is taxable for Sales Tax in Tennessee, but the advertising space is not taxable for Sales Tax in Tennessee. Your situation may have a different arrangement.
General Indemnification: You will hold Us harmless against all liability, including, without limitation, claims, demands, debts, obligations or changes, together with reasonable attorney’s fees and disbursements arising out of a breach by You of this contract or arising out of the content of the advertising material, art or copy furnished by You. We will hold You harmless against all liability (except for consequential damages, i.e., lost profits, revenue or advertising opportunity) but including claims, demands, debts, obligations or charges, together with reasonable attorneys’ fees and disbursements, arising out of a breach by Us of this contract. In no event shall Our liability hereunder exceed the aggregate amount paid to Us hereunder.
Intellectual Property Indemnification: You also warrant and confirm that You own or have obtained the appropriate legal rights the Intellectual Property in the manner contemplated by this and all agreements with Us. You agree to defend, indemnify and hold Us, harmless from any suit, demand, or claim arising out of any breach of this warranty and agree to pay any judgment or reasonable settlement offer resulting from any such suit, demand or claim, and to pay any attorney’s fees incurred by Us in defending against such suit, demand or claim.
Waiver: No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed b the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, whether or not similar, shall be construed as a waiver of any other breach, failure, right, or remedy, nor shall any waiver constitute a continuing waiver unless the writing to specifics.
Headings: the headings in this Agreement are included for convenience only and shall neither affect the construction of interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties to this Agreement.
Collections: If We need to engage an attorney or a collections agency to recover payments or expenses owed by You, You agree to pay all such costs and fees incurred by Us in attempting to collect such payments or expenses, including but not limited to attorneys’ or collections agency fees and expenses.
Entire Agreement; Amendment: These terms and conditions along with any signed contract is intended to be the entire agreement between the parties and supersedes all previous oral or written negotiations, proposals, drafts, agreements and understandings related to the subject matters contained herein. Facsimile or scanned signatures and copies of the contract are valid and binding as originals. Signed contracts cannot be changed or terminated orally. Failure of either party to enforce any of the provisions hereof will not be construed as general relinquishment or waiver of that or any other provision. All notices hereunder will be in writing, deemed given on the date of dispatch, and addressed to You and Us at the addresses on the face hereof. If any provision of this contract is held to be invalid or unenforceable for any reason then the remaining provisions shall continue to be valid and enforceable.
Force Majeure: We shall not be responsible for delays or lack of service or failure to perform Our obligations due to laws, ordinances, weather, zoning restrictions, acts of war, riot, civil disturbance, condemnation, strikes, lockouts, acts of God or others beyond their control, including, but not limited to, any mechanical, electronic, internet, telecommunications, or communications failure. If there are any laws, ordinances, zoning restrictions or administrative orders which prohibit the production or installation of the display(s) set forth in this contract, We shall have the right to terminate this contract immediately with no other obligation. In case of this event, the termination shall take effect before the date that the law, ordinance, zoning restrictions or order becomes effective, or whatever date is necessary so that this Agreement does not violate that law, ordinance, zoning restriction or order.
Severability: In case any one or more of these provisions of these Terms and Conditions shall be invalid, illegal or unenforceable in any respect, the validity legality and enforceability of the remaining provisions contained herein and any other application hearof shall not be in any way affected or impaired.
Governing Law/Jurisdiction: These Terms and Conditions are governed by the laws of the State of Tennessee, without giving effect to any principles or conflicts of law. Any litigation concerning these Terms & Conditions or other uses of this site shall be brought in state or federal courts located in the state where the sponsor of this website’ss offices are located and You consent to the exercise of personal jurisdiction over Your by such courts.
Appropriate Time Frames for Requesting Work Revisions: If You believe that We have made an error in programming or site updates etc. and if You believe that We should provide a correction free of charge, you have 30 days from the completion of the work to bring such facts and the complete documentation of the requested changes to Our attention. Otherwise, the requested change will be treated as a new request for work. The 30 day time period will begin on the earlier of the date We notifies you that the work is complete or of the invoice date of an invoice from Us for the work completed. Notifications sent via mail will use the postmark date as the notification date. If the request is not within the scope of an appropriate services agreement, We will not complete the changes free of charge, even when the notifications are completed in the allowed 30 day time period.
Submittal of Materials and Intellectual Property by You/Artwork: When using any Services provided by Us, You may elect to upload or otherwise submit materials and Intellectual Propoerty to the site (collectively, “Materials”) or to Us. We do not supervise the uploading of Your Materials to this site, although We reserves the right to do so. You agree, represent and warrant that in using the Services, You will not upload, submit or otherwise transmit to Us and of the following:
- Materials that are unlawful, threatening, abusive, defamatory, obscene or which invade another person’s privacy or further the commission or concealment of a crime;
- Materials that are not lawfully Yours to transmit;
- Materials containing software viruses or other harmful computer code; or Materials that in any way interfere with or disrupt the Services or any servers or networks connected to or used with the Services (any of the foregoing, “Unauthorized Materials”).
The Ownership of Materials or any website content does not change upon Submittal of any Materials unless We are Purchasing Materials from You. We take no ownership in any Materials uploaded to the this website, except We retains Our rights in and to the Content that is present on the site or that may be created and/or supplied by or for Us.
You also warrant and confirm that You own the copyright or have permission to copy any documents or Materials You submit to Us, and agree to defend, indemnify and hold Us, harmless from any suit, demand, or claim arising out of any breach of this warranty and agree to pay any judgment or reasonable settlement offer resulting from any such suit, demand or claim, and to pay any attorney’s fees incurred by Us in defending against such suit, demand or claim.
Right to Make Derivative Works. We will have exclusive rights in making any derivative works from any of Our work, practices, coding, programing or other work. You may keep content created by Us on a website of Your choosing after termination of this contract. You shall have copyright ownership of items We purchase on Your behalf according to the terms of that specific purchase.
Independent Contractor: We shall be retained as independent contractors and We shall be responsible for Our taxes, production methods and schedules and shall not be entitled to any fringe benefits from You.
Domain Names: Any domain name registered on Your behalf will made in Your name for the billing and administrative contacts. We will be the technical contact unless other arrangements are made. If We are not the Technical Contact We are not responsible for renewals or activities for Transfering the domain.
Identification of Us You agree that Our Identification may be annotated and remain within the code or on the Website as the authors. You also agree to put Our copyright notices on SEO and the relevant content therein.
Outdoor Advertising Specific Terms and Conditions
Cash Versus Credit: Payments by cash or credit receive a 3% credit. The price on proposals includes the cash credit. (The cash price is the proposed price.)
What You Authorize Us to Do: The signed contract authorizes Us to sign contracts with Third Party Participants on Your behalf which will bind You to the commitments in Your signed contract with Us and the Third Party Participants. The production rate is subject to receipt of artwork by PA Company. All terms/conditions/artwork are subject to approval by the Third Party Participants. All production payments due under this Agreement are due to Us in advance of production beginning. We are not responsible for delays in the production process caused by the Third Party Participants. You agree to hold Us harmless against liability arising out of the content or appearance of the advertisement. The buy(s) listed at the beginning of this document are subject to acceptance from the OOH Company.
Destruction of Materials: At the discretion of the OOH company, all materials (vinyl’s, paper, backlit materials, etc.) and/or other artwork may be destroyed at the termination of this contract unless We receive written notice of other instructions at least 30-days prior to termination of this contract. If You requests Us to store old/unused materials, You may be subject to monthly storage fees.
Initial and ongoing Payments: The initial payments are defined in the “TOTAL DUE AT SIGNING” area of the contract and are are due to activate the contract start date or the start of production. The initial payment is for the last periods of the contract. Regular billing will commence upon project start. We shall invoice You at the beginning of each period thereafter and invoices are due upon receipt by the You. If any payment is not received by the due date, the OOH Company may choose not to post copy or may pull posted copy and You shall nevertheless be liable for the full term of this Agreement. You will pay interest at the rate of 1.5% per month on all accounts not paid when due until paid in full or the maximum rate permitted by law shall apply whichever rate is less. Once Your payment has cleared from You to Our account(s), you are not responsible for duplicating that payment to the respective Third Party Participants.
Illumination: If this contact calls for illumination, lights will be illuminated from dusk to midnight and 6 a.m. to sunrise unless otherwise specified subject to local ordinances.
LED Addendum: The daily frequency of displays on LED and other digital signs may be reduced by Amber Alert messages and down time on the LED caused by equipment repairs, routine sign maintenance, acts of nature and other uncontrollable events. You shall only be entitled to credits for lost time if the total period frequency of display of Your copy is less than 80% of the contract amount.
Terms/Conditions/Artwork: All terms/conditions/artwork subject to approval by Us and and OOH Company. If You produce or supply materials directly and the materials are not approved by OOH Company, We assume no financial responsibility associated with the reproduction of approved artwork. You also warrant and confirm that You own or have obtained the appropriate legal rights the Intellectual Property in the manner contemplated by this and all agreements with Us. You agree to defend, indemnify and hold Us harmless from any suit, demand, or claim arising out of any breach of this warranty and agree to pay any judgment or reasonable settlement offer resulting from any such suit, demand or claim, and to pay any attorney’s fees incurred by Us in defending against such suit, demand or claim.
First Right-of-Refusal: You shall have right of first refusal on any of the above listed permanent display(s) locations (excluding rotary locations), which are contracted for a period of one year or longer, for the term beginning when the above term ends as long as OOH company agrees and You gives Us notice of intent to renew and signs a new contract sixty (60) days prior to termination date of the above displays. All renewal contracts for this location(s) must be contracted through Us and renewal rates are dependent upon OOH company rates at the time of renewal.
Posting and Removing Dates: OOH companies require a five-day window on either side of a posting date to install materials. Materials must be delivered to OOH Company no later than five business days prior to the contract start date to ensure timely installation of materials. If materials should arrive late, materials will be installed in the order that they are received. We will work with OOH Company to ensure that all materials are installed in a timely manner, but will not guarantee materials will be installed within the five-day window. Weather or any acts of God may delay the installation of materials. At the discretion of the OOH Company, copy may remain on display(s) past the contracted period.
Governing Law/Jurisdiction: These Terms and Conditions are governed by the laws of the State of Tennessee, without giving effect to any principles or conflicts of law. Any litigation concerning these Terms & Conditions shall be brought in state or federal courts located in Tennessee and You consent to the exercise of personal jurisdiction over Your by such courts.This contract shall be governed by and construed in accordance with the laws of the State of Tennessee.
No Warranty or Liability: We do not guarantee work product or provide any express or limited warranties. Any guarantees and warranties are provided solely by the Third Party Participants to You. We are released from any liability resulting from errors and/or breach on the part of the Third Party Participants. You agree to hold Us harmless against liability arising out of the content or appearance of the advertisement.
Additional Terms and Conditions Website Hosting
Additional Terms: The Standard Terms and Conditions apply unless there is a conflict between the terms, in which case, these additional terms for these services shall prevail.
Description of Service We currently provides the Services to Our customers for a monthly fee. We will host Your web site on Our servers, provided, however, You abide by the terms and conditions set forth herein and in each of Our policies and procedures.
License of Your website content We grant to You, and You accept from Us, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with Our performance or enforcement of this Agreement. Availability of Services Subject to the terms and conditions of this Agreement, We shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a 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: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that We may undertake from time to time; or (iii) causes beyond the control of Us or that are not reasonably foreseeable by Us, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that Us has no control of availability of the Services on a continuous or uninterrupted basis.
Service Availability Guarantee We offer a service uptime guarantee for the Services of 99.9% (“Service Uptime”) of available time. If We fail to maintain this level of service availability, You may contact Us and request a credit of 5% of Your monthly hosting fee from Us for that month. The credit may be used only for the purchase of further products and services from Us and is exclusive of any applicable taxes. The credit does not apply to service interruptions caused by (i) periodic scheduled maintenance or repairs that We may undertake from time to time; (ii) errors caused by You from custom scripting or coding; (iii) outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email; (iv) causes beyond the control of Us or that are not reasonably foreseeable by Us; and (v) outages related to the reliability of certain programming environments. Total Service Uptime shall be solely determined by Us and shall be calculated on a monthly basis.
Web Site Content If you acquire or are given access to Your website through any means such as ftp that allows you change the content of Your website then You shall be solely responsible for providing, updating, uploading and maintaining Your website 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. Notwithstanding anything in this Agreement to the contrary, in the event You are using ad-supported hosting, in no event shall Your web site consist of the following: search results, registration, “thank you”, error, email or chat pages, pages comprised primarily of other advertising or pages that contain any of the following types of content: pornographic, obscene or excessively profane content or content intended to advocate or advance computer hacking or cracking, gambling, illegal activity, drug paraphernalia, hate, violence or racial or ethnic intolerance. If you do not acquire and are not given access to Your website through a means such as ftp that allows you change the content of Your website then We are responsible for maintaining appropriate site content based on the information You provided Us through, written, oral, or electronic communication. You are responsible for providing content change requests in a timely manner and You agree to give Us at least 2 business days to make any changes.
Your Obligations You represent and warrant to Us that: If Your web site includes GIF images you must ensure that Your GIF images are licensed with Unisys or were created with Unisys Authorized Software. You also warrant that the web site being hosted by Us will not be used in connection with any illegal activity. You are responsible for ensuring that there is no excessive overloading on Our DNS or servers. In the event that You exceed Your allotted bandwidth and thereby overload Our DNS or servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use Our 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 We reserve the right to remove sites that contain information about hacking or links to such information. Use of Your web site as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on Our servers that cause the server to load beyond a reasonable level, as determined by Us. You agree that We reserve the right to remove Your web site temporarily or permanently from Our servers if We are the recipient of activities that threaten the stability of Our network. Further, if You are using ad-supported hosting, You acknowledge and agree that We have the right to terminate Your Services in Our 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: (i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, We, in Our sole discretion, may permit You, if You have a legitimate purpose and after request, to send more email than Our standard STMP relay limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) 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; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) 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; (vi) 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; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by Us to be in conflict with the spirit or intent of this Agreement or any policy or Ours; or (ix) use Your server as an “open relay” or similar purposes.
Your Obligations–Email Marketing and Mass Email Operations If You use email marketing strategies, You agree to make Your mailing list a “double opt-in” system as defined by the appropriate laws and association guidelines. In general, this term indicates, that after a user has been initially placed on Your email list for communications, they must respond affirmatively to an email which represents a second communication on the topic indicating their desire to be on the marketing list. You must also include an option on all emails to allow individuals to opt out of the list.
Failure to be able to prove that you are these techniques without an appropriate exception, can result in loss of email privileges for Your accounts.
Appropriate exceptions are defined at Our Sole discretion. An example could include an email list that isseed solely for the dissemination of an organization’s information about its policies and events to its members and only its members, provided the membership does not consider the number of emails excessive.
Your Obligations–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 that 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: (i) prevent any loss or damage to Your web site content; (ii) maintain independent archival and backup copies of Your web site content; (iii) ensure the security, confidentiality and integrity of all Your web site content transmitted through or stored on Our servers; and (iv) ensure the confidentiality of Your password. Our servers and virtual dedicated services are not an archive and We shall have no liability to You or any other person for loss, damage or destruction of any of Your content. 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 Our sole discretion, that shall impair the functioning or operation of Our Services or equipment. Specifically by way of example and not as a limitation, You shall not use the Services as a repository or instrument for placing or storing archived files and/or material that can be downloaded through other web sites.
Hosting Service Provider’s Rights You agree that We have the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect Us or Our subscribers. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in Our sole discretion, are unacceptable, undesirable, or in violation of this agreement. We also reserve the right to refuse refunds in cases where We believes abuse has taken place.
We reserve the right to monitor any and all communications through or with Our virtual and physical facilities. You agree that We are not considered a “secure communications medium” for the purposes of the ECPA, and that no expectation of privacy is afforded.
We do not set a usage limit on Our Services, however, if You consume large amounts of system resources, We reserves the right to send an e-mail notice to You and set a limit on Your account, charge additional fees, or change the service plan. We reserve all rights to discontinue immediately Your email services without refunding otherwise applicable fees in the following circumstances:
- You violate Our Email and Email Marketing policies and put Our resources or reputation in significant danger,
- You are listed as a spammer or are black listed by a reputable third party email monitoring or black listing service that considers you to be a spammer or that “blacklists” any server traffic related to Us because of Your activities and We are unable to resolve the issue in a timely manner. We have sole discretion to determine what is considered a reputable third party service. One example of a reputable service would be SpamHaus.
- Any of Our vendors, especially including Our co-location facility, threaten to take punitive actions and the apparent cause is related to Your email activities.
These email policies are put in place, because it is the responsible way to act and because Our sites share resources with other sites. Harmful actions on one site can negatively affect many others.
Commencement of Services In the event that Weare creating a new site and it is not being transferred from another website host, hosting charges shall commence upon the date the site becomes public or is otherwise used to conduct Your business. Otherwise, hosting charges will commence when DNS points to Our servers.
Termination of Our Services and Transfer of Services Away from Us. In the event You or We terminate Your services, moving Your web site off of Our servers is Your responsibility. In no case will We will transfer or FTP Your web site to another provider. In the event Your use of the Services is terminated, We will not transfer or manage Your Services or Your website content. As courtesy to you, We may, at Our sole discretion, provide access to the website and related content in order that you may move the content to a new service provider. Upon termination We will not provide access to any website content that is defined as illegal, except as required by law. If You terminate services and transfer website content, You are responsible for all accrued charges through the time that that You notify Us in writing that content and services have been successful transferred. The date of Termination shall be considered the date that We recieve notice from You that DNS resolves to another host or the date that We confirm with You that DNS resolves to another host, which ever is later.