Terms of Service
These terms and conditions (TOS) apply to the Services Easy Web Presence, Inc. d/b/a ServeYourSite (ServeYourSite, we, us, or our) agrees to provide to you, and which govern the rights and responsibilities between ServeYourSite and the entity purchasing, or using those services (Customer, you or your). You agree to be bound by this TOS regardless of the way you have contracted with ServeYourSite. Both ServeYourSite and you agree that ServeYourSite’s continued provision of services to you, and your continued use of them, represent agreement to be bound by the TOS.
1.1 The features and details of the services governed by this TOS are described on the web pages describing the particular service you have purchased (Service Description Page) based on their description on the Service Description Page as it stands on the Effective Date. ServeYourSite may modify the products and services it offers from time-to-time. Should the Service Description Page change subsequent to the Effective Date, ServeYourSite has no obligation to modify the Services to reflect such a change. The services and products provided to you by ServeYourSite, as set out on the Service Description Page, are referred to as the Services.
1.2 Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. We will use commercially reasonable efforts to inform you of those changes. You may terminate this agreement if such a change materially affects the Services. The term “material” shall have the same definition it is given in this TOS in the paragraph defining a party’s material breach.
2.1 The “Effective Date” of this TOS will be the date you click “I accept” as recorded on our servers.
2.2 This TOS will begin on the Effective Date and continue for the term set out during the check out process (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the check out process does not contain an Initial Term, the Initial Term shall be one month. If the Effective Date is any day other than the first day of a month, the Initial Term may be less than one month.
3.1 Either party may terminate the services by providing written notice to the other no later than seven days from the expiration of the Initial Term or Renewal Term. You agree that for the purposes of this paragraph, “written notice” means either email notice to the correct email address designated by us for receipt of termination notices. Since email may often be misaddressed, it is your obligation to ensure that your termination email is received by us. We reserve the right to require verification of your intent to terminate this Agreement.
3.2 We reserve the right to immediately terminate this TOS, and suspend or cancel your services: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay Fees due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.
3.3 One party may also terminate this Agreement upon the occurrence of a material breach, which has not been cured by the other party within ten days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
4.1 You are responsible for the fees and charges set out on the Service Description Page, according to the terms set out on that page (Fees). The date on which Fees are due is the Due Date. If the Service Description Page does not set out a Due Date, the Fees will be due monthly. Set up fees are not refundable for any reason.
4.2 If the Effective Date begins on any day other than the first day of the month, ServeYourSite may opt to run your service period from the date of sign-up or prorated to the first day of the month. Should ServeYourSite elect to prorate your service, the Fees due will be prorated for the number of days during the Initial Term we will provide Services to you.
4.3 Our obligation to provide the Services is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Fees will be considered paid on the date your financial institution makes funds available to us. Should your account be suspended, for any reason other than our breach of this TOS, Fees will continue to accrue.
4.4 If the Fees are not paid by your financial institution, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges, including attorney’s fees; and/or (iv) any fees levied on us by our financial institution.
4.5 You may choose to purchase certain products and services that are provided by other parties through ServeYourSite (Third Party Services). Fees for the Third Party Services may not appear on ServeYourSite’s invoices on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date, and the date on which you are charged.
4.6 If you believe there is an error in your invoice, we encourage you to contact us in writing. Our obligation to consider your claim is contingent on your providing us with written notice of this dispute, and including sufficient facts for us to investigate your claims. We must receive this notice at least five days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit your account on your next invoice
5. Use of the Services
5.2 The Services are designed for lawful use only. It is your responsibility to fully understand and appreciate the laws of the United States of America and the state set out in the paragraph entitled “Choice of Law” when using our Services
5.3 Your use of the Services must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources or interfere with the services we provide to other customers. You may not use excessive bandwidth. You agree that we may place restrictions on your use of the Services to the extent that they exceed the use of the Services by similarly situated customers.
5.4 You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Services.
5.5 Upon termination or expiration, your account will be closed. We have no responsibility to forward email, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications.
6. Licenses and Intellectual Property
6.1 ServeYourSite grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by ServeYourSite solely to access and use the Services. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in ServeYourSite’s technology shall remain with ServeYourSite, or ServeYourSite’s licensors. You are not permitted to circumvent any devices designed to protect ServeYourSite, or its licensor’s, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
6.2 You grant ServeYourSite, and any third parties used by ServeYourSite to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your customers, in conjunction with the Services. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.
7. Your Representations and Warranty
7.1 You represent and warrant to ServeYourSite that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; and/or (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service.
7.2 You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to ServeYourSite, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
8.1 ALL SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN THIS TOS, SERVEYOURSITE HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND TITLE. SERVEYOURSITE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. SERVEYOURSITE IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY US. ServeYourSite SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY SERVEYOURSITE. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO SERVEYOURSITE SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
8.2 THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM SERVEYOURSITE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
8.3 SOME STATES DO NOT ALLOW SERVEYOURSITE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.
9. Limitation of Liability
9.1 IN NO EVENT WILL SERVEYOURSITE’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY ServeYourSite FROM CUSTOMER FOR THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM ServeYourSite SHALL BE INTERPRETED TO INCLUDE SERVEYOURSITE’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH ServeYourSite.
9.2 YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD ServeYourSite OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF ServeYourSite HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS SERVEYOURSITE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless ServeYourSite and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, 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 attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services (ii) any violation by you of any of ServeYourSite’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
11.1 Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you.
11.2 Please refer to our website, [website], for contact information for most issues, including technical support and billing. Notices regarding this TOS and other ServeYourSite policies should be directed to us at the address set out on our website.
12. Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
13. Choice of Law, Jurisdiction and Venue
The validity, interpretation, and performance of this TOS, and of the agreements and policies that apply to the Services, shall be controlled by and construed under the laws of the State of Ohio, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. You agree that jurisdiction and venue are proper in the state courts located in Akron, Ohio, or the U.S. District Court for the Northern District of Ohio located in Akron, Ohio. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
14. No Waiver
No waiver of rights under this TOS, or any ServeYourSite policy, or agreement between Customer and ServeYourSite shall constitute a subsequent waiver of this or any other right under this TOS.
This TOS may be assigned by ServeYourSite. It may not be assigned by Customer. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this TOS is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this TOS by written notice to the other.
17. No Agency
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
The following paragraphs shall survive this TOS: 5.5, 8, 9, 10, 13, 15, 16, 18.