This Services Agreement (the “Agreement”) contains the complete terms and conditions which govern your subscription of Web hosting, e-Commerce and other Internet-related services provided by LivingDot, Inc., (the “Services”). As used in this Agreement, “LivingDot” means LivingDot, Inc. (LivingDot.com), and “Client”, “you”, or “your” means you. By clicking on the “Submit Order” button, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the LivingDot site. As referred to in this Agreement, “Site” refers to a World Wide Web site and “LivingDot Site” refers to the Site located at the URL http://www.livingdot.com, or any other successor Sites owned or maintained by LivingDot.
1. APPROPRIATE USE OF THE SERVICES:
LivingDot provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.
- Client Content. Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client – or through Client by a third party – to any LivingDot server in connection with Client’s use of the Services which:
– Violate any state, federal or foreign laws or regulations;
– Infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of LivingDot or any third party;
– Are defamatory, slanderous or trade libelous;
– Are threatening or harassing;
– Pornography is prohibited on all LivingDot servers. This includes sites that may infer sexual content, or links to adult content elsewhere. LivingDot will be the sole arbiter in determining violations of this provision.
– Are discriminatory based on gender, race, age or promotes hate;
– Violate any LivingDot policy posted on the LivingDot Site.
– Contain viruses or other computer programming defects which result in damage to LivingDot or any third party.
- Bandwidth. Client may occupy only the amount of disk space on the LivingDot Server and utilize no more than the network bandwidth that is allotted by LivingDot. Additional fees, specified in the Virtual Host plans page, will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
- No “SPAM”. Client shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices at LivingDot, or otherwise, that mentions or reference any domain hosted on LivingDot servers or parked on LivingDot DNS servers. NOTE: THIS POLICY APPLIES TO VIRTUAL SERVER ACCOUNTS AND ALL DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVER.
- Licensed Software Only. Client agrees to use only properly licensed third party software in connection with Client’s use of the Services.
- Back-Up Files. Client will have the ability to reinstate files which are automatically archived by LivingDot; however, LivingDot does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, Client is responsible for making back-up files in connection with its use of the Services. Backup capability is available through the Client’s Control Panel.
- Termination. LivingDot reserves the right to refuse service to anyone. LivingDot, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behavior by a third party using the Services, please contact email@example.com.
2. PAYMENT OBLIGATIONS:
- Service Fees. By the Tenth (10th) of each month, LivingDot shall either (i) debit Client’s credit card (where such information is provided by Client) or (ii) deliver by e-mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month. Where an invoice is delivered to Client, Client shall remit payment to LivingDot by no later than 12 days after the specified payment due date. LivingDot shall be entitled to immediately terminate this Agreement for Client’s failure to make timely payments to LivingDot. Certain services carry a set-up fee charged by LivingDot to Client that must be paid by Client in order to have use of the Services. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to LivingDot and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid LivingDot for such Services, refunds will be issued for any unused full month portions less one month of the Services upon Clients request. Therefore, if Client’s account is cancelled at any point during the one (1) year term, Client will be entitled to a refund for all but one of the full months remaining after notice given by the 25th of the preceding month.
3. DOMAIN NAMES:
- EXPIRATION AND RENEWAL OF SERVICE(S): You acknowledge that it is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. As a convenience to you, and not as a binding commitment, we and/or your Primary Service Provider may notify you via an email message or via your account when renewal fees are due. Should these fees go unpaid, your Services will expire or be cancelled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Service(s), we may attempt to renew the Service(s) a reasonable time before expiration, provided your credit card or other billing information is available and up to date. You acknowledge that it is your responsibility to keep your billing information up to date and that we are not required to, but that we may, contact you to update this information in the event that an attempted transaction is not processed successfully.
- IF LAWSUIT(S) ARE THREATENED: If we are sued or threatened with lawsuit in connection with Service(s) provided to you, we may turn to you to indemnify us and to hold us harmless from the claims and expenses (including attorney’s fees and court costs). Under such circumstances, you agree that you will, upon demand, obtain a performance bond with a reputable bonding company or, if you are unable to obtain a performance bond, that you will deposit money with us to pay for our reasonably anticipated expenses in relation to the matter for the coming year. Such deposit will be drawn down as expenses are incurred, with all account notices sent to the WHOIS contact information provided in association with your domain names and/or account. We shall not be obliged to extend you any credit in relation to such expenses and we may terminate the Services for a failure to make or renew such a deposit. We will return any unused deposit upon the later of one year from deposit or the conclusion of the matter.
4. CLIENT LIABILITY AND INDEMNIFICATION:
- The parties agree that in no event shall LivingDot be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless LivingDot from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.
5. TERM, TERMINATION & REINSTATEMENT:
- Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month basis unless otherwise specified by separate agreement (the “Term”) unless terminated earlier pursuant to the provisions of this Section 4. Either party will have the right to terminate this Agreement upon notice to the other party. All cancellation requests must be received by the end of the respective month of cancellation. Any other attempt by Client to cancel this Agreement by written or e-mail notice shall be void. Sections 3 – 8 shall survive termination or expiration of this Agreement.
- If Client terminates its account, Client shall be allowed to re-instate Client’s use of the Services within Seven (7) business days of cancellation. Client’s account will be activated within Forty-Eight (48) business hours. LivingDot (LivingDot.com) will maintain an archival copy of Client’s Web site for Seven (7) days after LivingDot receives notice of cancellation. Thereafter, Client will need to place a new order if it wishes to subscribe to the Services.
- Client will pay and indemnify and hold LivingDot harmless from any and all taxes associated with or arising from Client’s use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
7. DISCLAIMER OF WARRANTY:
- THE SERVICES, THE LIVINGDOT SITE, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE LIVINGDOT SITE, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY KIND. LIVINGDOT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FOREGOING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIVINGDOT SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1)THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
8. LIMITATION OF LIABILITY:
- IN NO EVENT SHALL LIVINGDOT BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE LIVINGDOT SITE OR ANY LIVINGDOT PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL LIVINGDOT CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN ONE HUNDRED DOLLARS ($100 US).
- If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by LivingDot. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees. This Agreement is made under and shall be governed by the laws of the United States of America, except with regard to it’s conflict of law rules. This Agreement and LivingDot’s policies are subject to change by LivingDot without notice. Continued usage of the Services after a change to this Agreement by LivingDot or after a new policy is implemented and posted on the LivingDot Site constitutes your acceptance of such change or policy. We encourage you to regularly check the LivingDot.com Site for any changes or additions.