Managed Web Hosting Terms of Service
This Terms of Service Agreement ("Agreement") governs your purchase and use, in any manner, of all web site hosting and management services (the "Services"), ordered by you from Riverscape Software ("Riverscape") and sets forth the terms and conditions that apply to such purchase and use of the Services. Under the terms of this agreement, your order for Riverscape services or your placement of information on servers under Riverscape's control is an acknowledgement that you have read, understand, and agree to bide by the terms and conditions below.
Term And Payment For Services
This Agreement shall be for an "Initial Term" as chosen by you at the time you order the Services. This Agreement will be automatically renewed (the "Renewal Term"), at the end of the Initial Term and at the end of each Renewal Term, for the same period as the Initial Term unless either party provides notice of termination or change in plan to the other party at least thirty (30) days prior to the beginning of the next Renewal Term. You will be invoiced by email monthly, with payment due upon receipt of the invoice.
If you terminate the Services (a) Riverscape will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of the agreed monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. In the event of termination, Riverscape shall make available to you all backups of your data in its possession for a period of sixty days, after which it shall destroy all backups and copies of your data.
Acceptable Use Policy
You, your employees, agents, contractors, and end-users of your web sites hosted by Riverscape under this Agreement may not:
- Utilize the Services to send mass unsolicited e-mail to third parties, provided, however, that you may use software programs or services provided by Riverscape to send unsolicited commercial e-mail so long as you ensure that such transmissions comply with all applicable state, federal and international regulations, rules and laws, including, without limitation, the U.S. CAN-SPAM Act of 2003.
- Utilize the Services to be involved in the distribution of tools designed for the aiding of Unsolicited Bulk Email (UBE).
- Utilize the Services in such a way that Riverscape servers or facilities become documented on a recognized Internet abuse list, including spam abuse lists.
- Riverscape does not allow the use of IRC. This includes, but is not limited to, the use of IRC clients, server software, bots or anything related to IRC.
- Utilize the Services in connection with any illegal, tortious or actionable activity or any activity which Riverscape deems, in its sole discretion, to be disruptive or abusive of Riverscape's facilities or the facilities of Riverscape's upstream providers or those of any other third party or which causes, or might cause, Riverscape to be in violation of the terms under which it obtains services from its upstream providers or suppliers, including without limitation ServerBeach Dedicated Hosting.
No Service Warranties
Riverscape makes no warranties or representations of any kind for the services being offered. The Service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non-infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by Riverscape or its agents or employees shall create a warranty. Riverscape provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall Riverscape be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with Riverscape service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Services.
Passthrough of Upstream SLA Refunds
Riverscape has contracted with other upstream providers for servers, network facilities, and other services, and combines these with its own services in order to provide you the Services. In the event of hardware or network failures or other service interruptions for which Riverscape is eligible for refunds under Service Level Agreements with its upstream providers, Riverscape shall actively seek to obtain such refunds, and shall pass-through 100% of any refunds it receives to you. In the event that the upstream services to which a refund pertains are shared between you and other Riverscape clients, the refund may be apportioned by a reasonable method determined by Riverscape between you and those other clients. At the present time Riverscape sources the hardware and network services provided under this Agreement from ServerBeach Dedicated Hosting. For your information, the current ServerBeach SLA, which is subject to change, is located here. Riverscape reserves the right to change its upstream providers and suppliers, or the terms under which it obtains upstream facilities, at any time without notice.
Intellectual Property Rights
You hereby grant to Riverscape a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Terms to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Riverscape a license to cache or backup materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching or backup is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Riverscape or its suppliers or agents pursuant to this Agreement, and any know how, methodologies, equipment, or processes used by Riverscape to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Riverscape or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Riverscape during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
You hereby grant to Riverscape a limited right to use your trademarks, if any, for the limited purpose of permitting Riverscape to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
Indemnification and Exclusion of Liability
You agree to indemnify, defend, and hold harmless Riverscape from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the service which damages either you, Riverscape, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account, including but not limited to domain name selection and web site content.
Interruption of Services. You hereby acknowledge and agree that Riverscape will not be liable for any temporary delay, outages or interruptions of the Services. Further, Riverscape shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
Riverscape's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
Riverscape may modify this Agreement from time to time. Upon being notified of such changes, your continued use of the Service shall be deemed to be your acceptance. If you do not agree to this Agreement, you must terminate your use of the Services.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. Any claim or cause of action you may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises. Otherwise, such claim or cause of action is barred. You agree that jurisdiction over any disputes arising in connection with the Services or this Agreement shall be exclusively within the courts of the Commonwealth of Massachusetts.
This Agreement constitutes the entire agreement between you and Riverscape with respect to the Services.