Service Agreement

DMEHosting Service Agreement

 

THIS AGREEMENT FOR DMEHOSTING SERVICES (hereinafter referred to as the "Agreement") is made and effective as of the date of acceptance, by and between you, (here-in-after referred to as "Client") and DMEHosting.

WHEREAS, DMEHosting owns, distributes, and/or provides various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet.

WHEREAS, client desires to utilize the DMEHosting services to develop client's presence on the World Wide Web, connect to, and utilize the Internet.

NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:

General Agreement

1. DMEHosting Services.
DMEHosting agrees to provide to client services. However, DMEHosting holds the right to deny any persons services.

1.1 Right to Deny Service(s).
DMEHosting holds the right to deny service to any persons or businesses. DMEHosting may, on its own accord, cancel any orders or services without notifying the client or giving reason for doing so. If DMEHosting cancels a order the client will receive a full refund, if services have not yet been rendered.

2. Payment and Invoicing.

2.1 In consideration of the performance of the DMEHosting Services, Client shall pay DMEHosting in advance the amount set forth.

2.2 Client shall receive a confirmation letter/invoice via e-mail at the time Client contracts for the DMEHosting services, which shall confirm the fees payable to DMEHosting. Thereafter, Client shall receive a monthly billing invoice/statement for the upcoming month, which shall indicate any changes in fees, which shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein. All services are invoiced 5 days in advance, and must be paid in full by the first day of new the service period.

2.3As soon as an invoice is created, DMEHosting will attempt to make a charge on that invoice. Client takes full responsibility to ensure his/her merchant account has the resources necessary ensure the invoice can be paid in full. DMEHosting will not be liable for any overdrafts, or other miscellaneous bank fees, the client may incur while paying invoices, or when DMEHosting attempts to charge an invoice. Client agrees to always keep enough funds in his/her bank account at all times to cover charges by DMEHosting for services.

2.4 Client is responsible for all activities and charges resulting from Client's use of the DMEHosting Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by DMEHosting in the event that Client's account is terminated or suspended by DMEHosting or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the DMEHosting Services until Client notifies DMEHosting by Support Ticket or by sending an e-mail with account information to support@dmehosting.com and receiving a ticket tracking number.

2.5 Current rates for using the DMEHosting Service may be obtained by emailing Sales@dmehosting.com, or visiting the DMEHosting website (http://www.dmehosting.com). DMEHosting reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days' (of end of current contract term) prior notice to Client. In addition, DMEHosting may institute special trial offers, from time to time which shall be reflected in the confirmation letter sent to Client upon sign up.

2.6 Late Fees.
If DMEHosting does not receive the full amount of Client's DMEHosting service account balance by the first day of a new service period, an additional 10% (or highest amount allowed by law per month) late charge will be added to Client's bill and shall be due and payable. Client shall also be liable for all attorney and collection fees arising from DMEHosting's efforts to collect any unpaid balance of Client's account(s). Account suspension will occur immediately after the invoice is over-due.

2.7 Penalties and Extra Fees.
Client agrees to pay DMEHosting US$35.00, per occurrence, for each chargeback issued against a transaction. Client agrees to pay DMEHosting a minimum of 35% (can be greater) or us$20 (which ever is more) additional to total due invoice(s), per occurrence, for each credit reporting/collection agency filing that may be necessary to expedite receipt of payment, collect on overdue funds, or other related issues. Client agrees to re-imburse DMEHosting for all legal/court fees optained while attempting to collect client’s debt. Client agrees to pay DMEHosting US$50.00 for each re-activation of a suspended account. The US$50.00 re-activation fee is per account, with an account potentially containing multiple websites, servers, or other services. DMEHosting reserves the right to charge a US$25.00 expedite fee for any support issue that client insists be taken care of “on the spot” immediately. Charges may be incurred for Abnormal Support requests serviced on your account.

In an event that a client issues a dispute or chargeback against DMEHosting, DMEHosting holds the right to suspend or terminate client services immediately. Chargebacks/Disputes are not tolerated and client will forfeit all services with DMEHosting.

3. Responsibilities, Rights and Status of DMEHosting.

3.1 Means of Performance.
DMEHosting shall provide Client with the DMEHosting services, as set forth. DMEHosting has the right to control and direct the
means, manner, and method by which the services are performed. DMEHosting shall perform the services in a professional manner.

3.2 Support.
DMEHosting shall provide a reasonable level of technical support to Client via Email, Support Tickets, Live Chat,
forums, and/or online manuals/Knowledgebases for the term of this Agreement.

3.3 Other Work.
DMEHosting has the right to perform and license products to others during the term of this Agreement. DMEHosting may elect to electronically monitor the services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate services and protect its Clients. DMEHosting reserves the right to block any site/account hosted by DMEHosting that contains/transfers any content that it deems in its sole discretion to be unacceptable or undesirable.

4. Responsibilities and Rights of Client.

4.1. Client Liaison.
Client shall designate a contact person who shall act as a liaison between Client and DMEHosting. Client certifies to DMEHosting that he/she is not a minor. A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision. Client agrees to provide DMEHosting with accurate, complete and updated information required by the registration/initiation of the DMEHosting service (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data ( e.g., credit card number and expiration date ). Client agrees to notify DMEHosting within thirty (30) days of any changes in Client Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use DMEHosting Services.

4.2 Acceptance of DMEHosting Services.
Client shall have the right to evaluate the DMEHosting Services as set forth for a period of thirty (30) days after initiation of the DMEHosting Services, at the charge, if any, set forth or elsewhere offered by DMEHosting and confirmed in the confirmation letter. If Client determines that any DMEHosting Services do not reasonably satisfy the standards provided herein, then Client shall promptly notify DMEHosting of such deficiency. DMEHosting shall use commercially reasonable efforts to cure such deficiency . In the event DMEHosting is unable to cure such deficiency, Client's sole and exclusive remedy shall be the refund of the amounts paid by Client under the Agreement, and the right to terminate this Agreement.

4.3 Fees and Expenses.
Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided DMEHosting Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and InterNic.

4.4 Third-Party Software.
Third-Party software available through the DMEHosting Service may be governed by separate end user licenses. By using the DMEHosting Services and the third-party software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software.

4.5 Management of Site.
Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, DMEHosting's then-standard Service Guidelines (AUP), DMEHosting Terms of Service (TOS), and any generally applicable guidelines and service standards published by DMEHosting. Client warrants that its content hosted on the DMEHosting network (I) will conform to the DMEHosting Terms of Service (TOS); (II) will conform to the DMEHosting Service Guidelines (AUP); (III) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (IV) will not contain any content which violates any applicable law, rule or regulation. DMEHosting shall have no obligations with respect to the content available on or through any site hosted on the DMEHosting network, including, but not limited to, any duty to review or monitor any such content. DMEHosting reserves the right to block any site that violates any of the above-stated terms, or which in DMEHosting's sole discretion, DMEHosting deems objectionable or offensive, or otherwise violates a law or DMEHosting policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.

4.6 Service Level Agreement (SLA).
DMEHosting is required maintain a Service Level Agreement (SLA) to guarantee network/equipment reliability and performance. The DMEHosting Service Level Agreement (SLA). DMEHosting reserves the right to change or modify this SLA to benefit the Client, and will post changes to online location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, DMEHosting makes no claims regarding the availability or performance of the DMEHosting network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific details of the "Contract Specification" section of this agreement. In case of difference terms/points in SLA and "Contract Specification", the "Contract Specification" terms/points prevail over this general SLA policy. The "Contract Specification" signed/agreed by client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.

4.7 Co-Location/Equipment Insurance.
Client is responsible for providing insurance coverage for all co-located equipment in the DMEHosting Data Center and/or all customer property not supplied and maintained by DMEHosting in a DMEHosting facility or at the customer’s premise. DMEHosting is not responsible for such equipment, but is required to provide a reasonable amount of protection for equipment, including, but not limited to; alarm systems, surge protection, security cameras, video recordings, monitoring, theft prevention, racking equipment, and weather control.

5. Confidentiality and Proprietary Rights.
Both parties acknowledge that: (I) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others; (II) in the performance of the DMEHosting Services, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party's business affairs, finances, properties, methods of operation and other data (here-in-after collectively referred to as ("Confidential Information"), and; (IV) unauthorized disclosure of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.

5.2 Non-Disclosure.
Both parties agree that, except as directed by the other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party or that come into the party's possession or under the party's control that relates to Confidential Information; and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party's possession or under such party's control that contain or relates to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the
information to be confidential. Confidential Information shall not include information that: (I) is already lawfully known to or independently developed by the receiving party; (II) is in the public domain through no fault of the receiving party; (III) is lawfully obtained from a third party without restrictions; or (IV) is required to be disclosed by law, regulation or governmental order.

5.3 Injunctive Relief.
Both parties acknowledge that disclosure of any Confidential Information by the other party will give rise to irreparable injury to the owner of such information, inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

5.4 Proprietary Rights.
Unless otherwise specified, all work performed hereunder, is the property of DMEHosting and all title and interest therein shall vest in DMEHosting; provided however, that any content or materials supplied by Client shall remain the property of Client and its suppliers. To the extent that title to any such works may not, by operation of law, vest in DMEHosting, all rights, title and interest therein are hereby irrevocably assigned to DMEHosting. All such materials shall belong exclusively to DMEHosting, and DMEHosting shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give DMEHosting and any person designated by DMEHosting such reasonable assistance, at DMEHosting's expense, as is required to perfect the rights defined in this paragraph.

5.5 Non-Compete.
Neither Client, nor DMEHosting, may at any time during contract term, and one year following termination of this contract, provide similar service to current customers of the other party. “Current customers” is defined in this case as; any party having been a client within the past 12 months of the current date, regardless of whether client is currently still utilizing such services. A signed waiver on a case by case basis is required, should both parties agree to make an exception. Both parties are required to notify each other should a customer attempt to switch service to the other party. In event of a breach of this clause, the parties agree that damages in the amount of 24 months (2x revenue) should be paid. If Client fails to pay DMEHosting for services rendered, or Client’s services are suspended/cancelled according to appropriate policy, DMEHosting retains the right to accept Client’s customers directly as DMEHosting clientele. DMEHosting will take reasonable action to re-activate/re-instate Client’s service prior to such measures being taken, but such action may be necessary to protect the best interest’s of the end-user of the DMEHosting services, as well as the reputation of DMEHosting itself.

5.6 Non-Solicitation.
Neither party should knowingly solicit for employment, offer employment to, or employ any of the other party’s employees/staff during contract term, and one year following termination of this contract. In event of a breach of this clause, the parties agree that damages in the amount of 12 months (1x annual salary) current salary for the individual(s) should be paid.

5.7 Marketing Rights.
Client agrees that DMEHosting may refer to Client, and/or Client’s business/company, in DMEHosting marketing materials, the DMEHosting website, and communication to DMEHosting current/potential clientele. Client grants DMEHosting a limited license and permission to use any Client trade name and/or trademark for such, and only for such, purposes.

6. Warranties/Indemnity.

6.1 Warranty.
Client understands that except for information, products, or services clearly identified as being supplied by DMEHosting, neither DMEHosting, nor any of its affiliates, operates or controls any information, products, or services on the Internet in any way and that, except for such DMEHosting identified information, services or products, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with DMEHosting or its affiliates. The terms and conditions for the use of DMEHosting software/services provided by DMEHosting are governed by the terms of each product's end user license.

ALL SOFTWARE MADE AVAILABLE IN CONJUNCTION WITH THE DMEHosting SERVICES ARE PROVIDED ON AN "AS IS " BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DMEHosting DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE DMEHosting SERVICES; INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND THAT PORTIONS OF THE INTERNET CONTAIN MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT AND MAY BE OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. DMEHosting HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY DMEHOSTING, ITS EMPLOYEES, LICENSERS, OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL DMEHosting OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE DMEHosting SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE DMEHosting SERVICES and/or DMEHosting SOFTWARE INCLUDING BUT NOT LIMITED TO reliance on any information obtained, or stored, on the DMEHosting network; or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to DMEHosting records, programs, or services. DMEHosting is not liable for damage caused by lightning strikes to customer premise equipment, co-located equipment, or customer property connected to such. Client should take proper precations to protect their property from damage by lightning. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, IN SUCH STATES, DMEHOSTING'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

6.2 Indemnity.
Each party will indemnify the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees resulting from the indemnifying party's material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or willful misconduct of the other party. Such indemnity shall be conditional upon (I) prompt notification to the other party of any indemnifiable claim; (II) the indemnifying party's control of all settlement and other negotiations; and (III) the indemnified party's full cooperation with respect to such claim.

6.3 Limitation of Liability.
DMEHosting shall not be liable to Client for more than the aggregate amounts paid to DMEHosting under this Agreement.

6.4 Liability.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.

7. Terms and Termination.

7.1 Term.
This Agreement will become effective on the date indicated in the "Contract Specification" section of this Agreement, and will remain in effect for the term indicated in same. This agreement is automatically renewed for same originating term as indicated in the "Contract Specification", section of this agreement at end of current term, unless Client terminates this Agreement (via fax, mail, or online cancellation form) to DMEHosting prior to reoccurring invoice creation. Once a invoice is created, it must be paid, however the client can still agree to have his/her services terminated.

7.2 Termination.
In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement, by giving five (5) days prior notice thereof (by email, by ticket, by fax); provided, however, that this Agreement shall not terminate at the end of said five (5) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said five (5) days.

7.3 Termination of Agreement.
Client may terminate this Agreement at any time for any or no reason upon written notice (via ticket, email, or online cancellation form within Client Area) to DMEHosting, within 5 days prior to next service term. DMEHosting may terminate this Agreement at any time for any or no reason upon five (5) days written notice (via fax, ticket, or email) to Client, prior to end of current service term. Notwithstanding the foregoing, DMEHosting may immediately block Client's site or immediately terminate Client's access to and use of the DMEHosting Service and software; if at DMEHosting's sole discretion, it deems any information contained in Client's site to violate DMEHosting's Terms of Service (TOS), DMEHosting's Basic Policy and Service Guidelines (AUP), or to be otherwise objectionable or offensive or to violate the law, in accordance with Section 4.6 herein. Client's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of DMEHosting in operating the DMEHosting Service, any change in the content of the DMEHosting Service, or any change in the amount or type of fees charged in connection with the DMEHosting Service, is to terminate this Agreement by delivering notice to DMEHosting, effective the day DMEHosting receives notification of termination or any future date specified which is acceptable to DMEHosting. DMEHosting may terminate immediately any Client who misuses or fails to abide by this Agreement, DMEHosting's Terms of Service (TOS), or DMEHosting's Basic Policy and Service Guidelines (AUP) DMEHosting may terminate without notice Client's access to and use of the DMEHosting Service and Software upon a breach of this Agreement. If DMEHosting denies you access to the DMEHosting Services, you shall have no right to obtain any credit(s) otherwise due to you. DMEHosting shall have no responsibility to notify third-party providers/users of services, merchandise, or information, associated with your DMEHosting Service, nor shall DMEHosting have any responsibility for any damages that result from the lack of such notification.

7.4 Money Back Guarantee.
At this current time DMEHosting does not offer any refunds except on a case to case basis. Client agrees to forfeit any sort of refund unless DMEHosting makes it known when delivering the products/services. At this current time, DMEHosting only offers money back guarantee (30 days) for shared hosting accounts, this excludes all other services provided by DMEHosting.

7.5 Surviving Sections.
The following paragraphs shall survive the termination of the Agreement: 5 ("Confidentiality and Proprietary Rights"), 6 ("Warranties/Indemnity") and 8
("General").

8. General.

8.1 Waiver.
A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

8.2 Severability.
In the event any one or more of the provisions of the Agreement or any of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

8.3 Force Majeure.
Neither party hereto shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for forty-eight (48) hours, the other party may terminate this Agreement without penalty and without further notice.

8.4 Independent Contractors.
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

8.5 Entire Agreement.
This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which is different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.