Definitions. The following definitions shall be used in this Terms of Service Agreement:
General Terms
Concierge has the right to monitor the Website, and in its sole discretion to remove any content that Concierge—in its reasonable and professional opinion—finds objectionable for any reason, without prior notice to Owner. This includes but is not limited to the following: Pornography, Spamming, Phishing Scams, Illegal business practices, or any material infringing on National or International Copyright. Website Owner is solely responsible for any liability arising out of or related to the Website. Owner agrees to indemnify and hold Concierge harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees and costs and experts’ fees and costs, associated with any claim or action brought against Concierge related to or arising out of the Website or Owner’s breach of its warranties under this Agreement. Concierge owns and retains full rights to any code/programs or software developed by Concierge. Owner owns all the content you placed into the website product or service, assuming it was original and does not infringe on existing copyrights. Any software used in any website product or service released under the General Public License (GPL) is governed by such. Concierge reserves the right to modify and/or change these terms and conditions at any time upon written notice to Owner. Confidential Information means all confidential and proprietary information of a party disclosed either before or after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party’s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes the following: (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology; and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include any of the following: (i) information in the public domain at the time of delivery; (ii) information subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives; (iii) information in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis; (iv) information which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party; or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business.
Concierge Obligations. Subject to your compliance with all of the terms and conditions of this Agreement, Concierge shall provide the Services and Support to you during the term of this Agreement in accordance with the commitments made in the SLA. In the event of a failure by Concierge to meet the obligations defined within the SLA, your sole and exclusive remedy and Concierge’s sole obligation is the issuances of Service Credits as set forth in the SLA.
Your Obligations. You are solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services by a User. You agree to fully comply with all of the obligations and restrictions set forth in the Acceptable Use Policy. You agree to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due, and comply with any and all laws applicable to your use of the Services. You shall cooperate with Concierge’s investigation of service outages, security issues, or any suspected breach of the terms and conditions of this Agreement.
WordPress Only Hosting. Concierge offers Managed WordPress Hosting. We only allow WordPress and WordPress compatible plugins and themes. This means if Owner adds any third-party software to an account/site that is not in the form of a WordPress plugin, then Owner is in breach of this agreement. Concierge retains the right to audit such code for performance and security concerns and allow or disallow at sole discretion.
Client Roster and Client Trademark Usage. By using this service, Owner grants Concierge permission and a royalty-free license to list or display applicable trademarked name(s) and logo in Concierge’s client roster. This license will terminate upon the end of the ‘Term’ as described below. This permission does not extend to any form of advertising or marketing performed by or on behalf of Concierge.
Fees. Owner’s initial invoice will include any Setup Fees and the Recurring Fees from the Service Commencement Date until expiration of the Recurrence Period. Thereafter, Concierge will invoice Owner in advance for the Recurring Fees and in arrears for the Non-Recurring Fees at the beginning of each Recurrence Period. The Recurring Fees set forth in the Service Order shall remain fixed during the Initial
Term. Upon commencement of any Renewal Term, the Recurring Fees for the Services shall be adjusted to the published fees then in-effect at the date of such renewal.
Payments. Payment terms are ‘due on receipt’. Owner shall be responsible for and shall pay, and shall reimburse Concierge on request if Concierge is required to pay any sales, use, value-added, or other tax (excluding any tax that is based on Host’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services.
Owner must notify Concierge in writing of any disputed Fees within fourteen (14) days of the invoice date for such Fees. If Owner does not notify Concierge within such period, Owner has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to Concierge.
If payment is not made by or on the due date, Concierge may charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
Concierge may be required to collect taxes on the Services. Taxes (excluding taxes on Concierge’s income) will be added to the Fees and Owner agrees to pay them, unless Owner provides us with a valid tax exemption certificate. If Owner elects to pay via a wire transfer or credit transfer then Owner is responsible for any transfer fees, which will be automatically added to the Fees.
If Owner does not pay on time, Concierge may suspend or terminate the Services and terminate this Agreement. In addition, Third Party Services may be forfeited. Concierge may also send Owner to collections, and add to the Fees any charges associated with collecting unpaid Fees. If the Services are suspended because Concierge does not receive payment, Concierge will preserve Customer Content in accordance with Concierge’s normal backup processes and procedures. After that time the Customer Content will be deleted.
Suspension of Services. Owner acknowledges and agrees that Concierge may suspend providing the Services to you, in whole or in part, without liability if any of the following occurs: (i) Owner fails to pay the Fees due to Concierge for a period of forty-five (45) days after the date of the invoice; (ii) Owner is in violation of the Acceptable Use Policy; (iii) Owner fails to reasonably cooperate with Concierge’s investigation of any suspected breaches of this Agreement; (iv) Concierge reasonably believes that the servers hosting the Services have been accessed or manipulated by a third party without Owner’s or Concierge’s consent; (v) Concierge reasonably believes that suspension of the Services is necessary to protect the Concierge environment generally; or (vi) Concierge is obligated to suspend Services via subpoena, court order, or otherwise as required by law.
Concierge will give Owner notice promptly after taking any of these activities. Owner is required to pay any Recurring Fees for any period of time during which your Services were suspended. Concierge will restore the Services promptly after you remedy the reason for such suspension. IN THE EVENT CONCIERGE TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO OWNER OR ANYONE CLAIMING BY OR THROUGH OWNER. Nothing herein shall preclude Concierge from pursuing other remedies available by statute or otherwise permitted by law. Term. The “Term” will refer to the time period between the Service Commencement Date, and the date Owner’s service is terminated. Commonly referred to as “No Contract,” services are offered on a cancel anytime basis.
Termination/Cancellation. Owner may cancel service at any time by following Concierge’s published cancellation procedure. Owner’s service will cancel/terminate within four (4) days after following this procedure. This will allow Owner some time to gather Owner’s files and transfer Owner’s service before the site is removed from Concierge system.
Refunds. Concierge shall not be compelled to issue a refund, pro-rated or otherwise for any reason. Concierge reserves the right to issue a refund on a case-by-case basis at Concierge’s sole discretion.
Termination. Either party may terminate this Agreement and any Order at any time for any reason at any time for any reason or no reason by providing the other party with thirty (30) days’ prior written notice. Additionally, Concierge may terminate this Agreement or any Order immediately if either of the following occurs: (i) Owner fails to pay for Services on time; or (ii) Owner’s use of the Services endangers or negatively affects Concierge’s networks or systems, violates the law or our AUP, or inhibits Concierge’s ability to provide services to Concierge’s other customers.
Upon any termination or expiration of this Agreement, Concierge will stop providing the Services. This means that Customer’s Content may not be available. It is Customer’s sole obligation to keep separate backups and to download the Customer Content prior to termination or the expiration this Agreement.
Termination for Breach. Without limiting Concierge’s rights to suspend the Services, Concierge may terminate this Agreement in the event of a material breach by Owner upon no less than fifteen (15) days prior written notice and opportunity to cure such material breach. Notwithstanding the foregoing, Concierge may terminate this Agreement immediately if Owner violates the Acceptable Use Policy, whether or not Owner subsequently cures such violation. Expiration of termination of this Agreement shall not relieve Owner’s requirement to pay Fees for Services provided prior to the effective date of termination.
Changes to Service. Any significant changes to the Services during the Term of this Agreement which materially affect the rights of Owner will result in a new Service Order and new agreement. Any unused payments under this Agreement shall be credited toward the new agreement. Owner acknowledges that from time-to-time, Concierge may cease supporting aspects of the Services (any such event, an “End of Life”). Should components of the Services come to an End of Life, Concierge will make a good-faith attempt to replace them with comparable components, but may not be able to do so. Owner agrees that an End of Life is not a breach of this Agreement.
Maintenance. Concierge may from time to time conduct routine tests, maintenance, upgrade or repair any part of the network, and Concierge shall use commercially reasonable efforts to give Owner prior notice thereof. Owner acknowledges that there may be instances where it is not practicable for Concierge to give advance notice of a disruption, for example, in the event of an emergency, and Concierge shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.
Confidential Information. Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
Limited Warranty. Concierge represents that it shall provide the Services in compliance with its Service Level Agreement. EXCEPT FOR THIS WARRANTY, CONCIERGE AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CONCIERGE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, CONCIERGE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WHICH THE SERVICES ARE PROVIDED. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT YOUR SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: EACH PARTY’S AND ITS LICENSOR’S CUMULATIVE LIABILITY TO THE OTHER PARTY AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY OWNER DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRO-RATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, CONCIERGE SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE. NEITHER PARTY OR ITS LICENSORS SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES, EVEN IF CONCIERGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OWNER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCE SHALL CONCIERGE ASSUME ANY LIABILITY OR RESPONSIBILITY TO OWNER FOR SUSPENSION OF SERVICE TO THE EXTENT PERMITTED BY THIS AGREEMENT.
Indemnification. Concierge shall defend, indemnify, and hold Owner, Owner’s affiliates, Owner’s employees, or any of Owner’s affiliates’ respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to either of the following: (i) Concierge’s breach of confidentiality or gross negligence or willful misconduct; or (ii) a claim that the Services as provided by Concierge under this Agreement infringe upon the United States patent or copyright or other intellectual property right of a third party. This is provided that all of the following conditions are met: (a) Owner gives Concierge prompt written notice of the claim; (b) Owner permits Concierge sole control over the defense and settlement of the claim; and (c) Owner reasonably cooperates with Concierge in the defense and or settlement of the claim. Owner shall defend, indemnify and hold Concierge, its affiliates, or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to the following: (i) Owner’s gross negligence or willful misconduct; or (ii) Owner’s use of the Services in violation of the Acceptable Use Policy or the law. This is provided that all of the following conditions are met: (a) Concierge gives Owner prompt written notice of the claim; (b) Concierge permits Owner sole control over the defense and settlement of the claim; and (c) Concierge reasonably cooperates with Owner in the defense and or settlement of the claim. Owner’s obligation under this Section 15 include claims arising out of acts or omissions by Owner’s employees, Users, and any other person who gains access to the Services as a result of Owner’s failure to use reasonable security measures.
Ownership of Intellectual Property; Software; Hardware and IP Addresses. Concierge does not claim any ownership rights in Owner’s content that Owner provides to Concierge in connection with the Services (“Customer Content“). However, to provide the Services, Concierge needs Owner to grant Concierge a right to use the Customer Content. As such, Owner hereby grants to Concierge, Concierge’s affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, transferable, revocable, worldwide license to use, modify, publicly perform, publicly display, reproduce, and distribute the Customer Content (in whole or in part) but only to the extent necessary to provide the Services.
Each party hereto shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights, and trade secrets. Any intellectual property used, developed, or otherwise reduced to practice in providing the Services to Owner shall be the sole and exclusive property of Host and/or its licensors, unless the parties hereto specifically agree in writing otherwise. Owner acknowledges and agrees that Owner does not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, Concierge does not acquire any ownership interest in the content or data that Owner stores on the servers or transmit via the Services. Owner acknowledges and agrees that third party software and hardware are used in the provision of Services. Accordingly, Owner agrees to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software. Owner acknowledges and agrees that any IP addresses that Concierge may assign to Owner in connection with the Services are registered to and owed by Concierge and upon any expiration or termination of this Agreement, Owner agrees to release and cease using any such IP addresses.
Miscellaneous.
Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Owner shall not solicit or hire the services of any employee or subcontractor of Concierge without the prior written consent of Concierge.
Force Majeure. Concierge shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, pandemic, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of Owner’s agents or third-party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
Notice of Claim and Filing of Suit. Owner must present any claim in writing to Concierge within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against Host under this Agreement, unless timely written claim has been given as provided above.
Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if one of the following is met: (i) said notice is mailed by certified or registered mail, return receipt requested; (ii) said notice is sent by internationally recognized overnight carrier; or (iii) said notice is personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the address set forth on the Service Order. Notices to Concierge shall be sent to Juice Marketing and Design, Inc., PO Box 613, Tarpon Springs, Florida 34688. Either party may change their notices address by written notice to the other party.
Modification; Authority; Assignment. Without limiting Concierge’s rights to modify the Acceptable Use Policy or SLA as set forth therein, Concierge may modify any aspect of this Agreement without prior notice. Should Owner wish to terminate this Agreement as a result of a significant modification which materially affects the rights of Owner, Owner may do so. Owner acknowledges that Owner has the authority to enter in to this Agreement on behalf of Owner’s company and that Owner may authorize other individuals to purchase additional services. This Agreement binds any of Owner’s authorized users, as well as Owner’s heirs, executors, successors, and assigns. This Agreement may not be assigned by Owner without the prior written consent of Concierge, which shall not be unreasonably withheld or delayed.
Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of Florida, excluding its conflicts of laws principles. Owner hereby submits to the exclusive jurisdiction of the federal and state courts of the State of Florida; provided, however, that Concierge shall have the right to institute judicial proceedings against Owner or anyone acting by, through or under Owner, in other jurisdictions in order to enforce Concierge’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT.
Arbitration and Class Action Waiver. Both parties agree that, except as otherwise provided herein, all disputes (including any dispute involving interpretation, applicability, enforceability, or formation of the Agreement, including any claim that the Agreement or any part of it is void or voidable) will be resolved by binding, individual arbitration under the American Arbitration Association’s rules. Both parties waive trial by jury. As an alternative, either party may bring a claim in Customer’s local “small claims” court if permitted by that court’s rules. Additionally, either party may seek emergency injunctive relief by filing for such in accordance with the Governing Law and Venue section above. Customer may bring claims only on its own behalf. Neither party may participate in a class action or class-wide arbitration for any claims covered by this Agreement. Customer also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Concierge is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either party may elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
Severability. Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction will be effective only up to the extent of such illegality or unenforceability, if possible, and will not invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision will be restated to reflect the parties’ intent.
General. This Agreement, together with the SLA, Acceptable Use Policy, any other documents referenced herein and any written amendments between the parties, constitutes the entire understanding between Concierge and Owner with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by Concierge.
