THIS AGREEMENT is between 3Essentials Inc. and ("Client'').
A. WHEREAS, 3Essentials hosts online services including web hosting and online services.
B. WHEREAS, Client desires 3Essentials to provide hosting services to Client.
C. WHEREAS, 3Essentials retains all rights, title and interest in and to all software, documentation, derivative works and other intellectual property developed, designed, created or contributed by 3Essentials pursuant to this Agreement, excluding the graphics and data supplied by Client and Client's domain name.
D. WHEREAS, Client shall pay 3Essentials for hosting services provided.
NOW THEREFORE, the parties agree as follows:
1. WARRANTIES. 3Essentials confirms and warrants that:
1.a. Power to Enter Agreement. Both parties have the right to enter into this Agreement and to grant the rights granted in it.
1.b. Good Faith Performance. Both parties shall, in good faith, comply with the terms of this Agreement.
2. ACCOUNT VERIFICATION.
2.a. Account Holder.Client, as Account Holder, acknowledges that 3Essentials has instituted account verification measures in order to ensure authorized account access.Client agrees that in the event that it is unable to access its account, for whatever reason, 3Essentials will require certain information to confirm account ownership.Client further agrees that in the event Client’s customer requests account access, for whatever reason, 3Essentials will follow the procedure set forth in subsection d. below.
2.b. Other Appointed Account Holder.Client, as Account Holder, acknowledges that 3Essentials requires Client to designate an individual, and corresponding email address for the individual, who will serve as the Other Appointed Account Holder.In the event that Other Appointed Account Holder requests access to the account, 3Essentials will notify Client of the request via email.If Client fails to respond to the request within five (5) business days, the Other Appointed Account Holder will become the account holder and Client will not be given access to the account without authorization from the newly appointed account holder.
2.c. Account Holder and Other Appointed Account Holder Unavailable.Client, as Account Holder, acknowledges that access to Client’s account may be necessary should Client and Other Appointed Account Holder become incapacitated or otherwise unavailable.In the event that an individual, other than the Other Appointed Account Holder, requests access to the account, 3Essentials will notify Client of the request via email.If Client fails to respond to the request within five (5) business days and the requesting party provides sufficient information to establish employment with Account Holder, the requesting party will become the account holder and Client will not be given access to the account without authorization from the newly appointed account holder.
2.d. Account Holder’s Customer.Client, as Account Holder, acknowledges that 3Essentials may receive a request from Client’s customer for access to Client’s account.In such instances, 3Essentials will require that Client’s customer provide a request, in writing, sufficient to establish ownership of the website hosted by 3Essentials.3Essentials will provide notice of any such request to Client via email. Client agrees that 3Essentials is permitted to both cancel Client’s account and to grant Client’s customer access to the website in a new account should Client fail to respond to the email, with the proper attestation, within five (5) business days.Client further agrees that in the event that 3Essentials cancels Client’s account and grants Client’s customer access to the website, Client agrees that it is waiving any claim it may have against 3Essentials.
3. SUBSCRIBER DATA.Client agrees to provide accurate, current, and complete information about its business and agrees to maintain and promptly update all information about its business. The web site location that must be used to provide said information is http://www.3essentials.com/myaccount.asp.
5. PROHIBITED USE.
5.a. Adult.No adult content of any kind is allowed. Content that is deemed questionable shall be prohibited at 3Essentials’ sole discretion.
5.b. Mass Email, Spam and Spam Resource Sites.No spam of any kind is allowed to or from 3Essentials’ network or servers. This includes, but is not limited to, mass emailings, email scraping software, emails sent with intent to solicit sales, and spam sent from networks outside of 3Essentials containing links to sites hosted by 3Essentials (“Spam Resource).Any software that can be used as a spam tool may be deemed a Spam Resource at 3Essentials sole discretion. 3Essentials reserves the right to determine if particular email being sent or received is spam.
5.c. Phishing Sites.Any site found to be capturing or "pretending" to be another site for whatever reason, including but not limited to: Attempting to obtain personal information, such as credit card numbers or SSN (social security numbers) is prohibited and will immediately be terminated, the site content will not be made available to the client, and the appropriate authorities will be contacted.
5.d. Abusive programs and Sites.Any website that consumes too many resources, including but not limited to CPU, Memory, Disk I/O and Network, on 3Essentials’ network or servers may be prohibited. 3Essentials reserves the right to determine solely if a site is using above normal resources. This includes but is not limited to, scripts (ASP, ASP.NET, PHP, Perl, Cgi-bin, exe), email use, excessive FTP/HTTP uploads and downloads, and sites used for the sole purpose of storing files. 3Essentials reserves the right to cancel the account or limit the availability of the resource(s), without notice.
5.e. IRC, Chat programs, Gaming Sites, Bit Torrent.IRC, any chat program, gaming web sites of any kind or sites that are connected to or by gaming servers, and bit torrent web sites of any kind, including server and client, are prohibited.
5.f.. Multimedia sites.Multimedia sites, video sites, picture site, audio sites, streaming media sites, file storage sites, or usage of 3Essentials for "remote" file hosting may be prohibited.Sites designed for serving and sharing multimedia/video, audio and streaming media are prohibited.
Sites designed specifically for file storage or file sharing, or customers using webhosting services specifically for file storage purposes are prohibited. Usage of 3Essentials to store files remotely accessed as content within another site is prohibited.
5.g. Network scanning, sniffing.Scanning from 3Essentials’ network is strictly prohibited.
Any violations of these or other activities that 3Essentials deems abusive to 3Essentials’ network or servers may result in immediate termination and cancellation of the offending account.
No refunds will be given to accounts cancelled due to violations of these prohibited activities, this includes the 30 day money back guarantee.
6. WEB HOSTING SERVICES.
6.a. Maximum Hard Disk Space. Client shall be allotted an amount of storage space on 3Essentials’ hard drive according to the hosting plan the Client signed up for at the time of purchase, which may be used to store Client's Web Pages, ordering information and databases, and user communications. Disk space is provided for files related to Client's website only (actively linked and content related). A 100MB maximum file size limit is enforced.
6.b. Jurisdictional Disputes. The parties expressly recognize that, where 3Essentials is acting solely as Client's Web Host, 3Essentials is not engaged in, and is not actively soliciting, interstate or international commerce. Where 3Essentials is a named party to any type of dispute or litigation involving any acts by Client that affect out-of-state persons or entities, Client agrees that it shall indemnify, hold 3Essentials harmless, defend 3Essentials and challenge the jurisdiction of out-of-state authorities over 3Essentials .
6.c. Web Site Storage and Internet Link. 3Essentials shall store Client's Web Site on 3Essentials’ Internet server. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. 3Essentials warrants that it shall maintain a consistent link with the Internet, but 3Essentials cannot and does not warrant that it shall maintain a continuous and uninterrupted link.
6.d. Bandwidth. 3Essentials agrees that it shall maintain adequate managed network services to provide acceptable response time to the Internet backbone via United States telecommunications providers. 3Essentials solely reserves the right to determine "acceptable" response time connection to the Internet, and does not warrant any response rate or download time. While some customers from non-U.S. based locations have chosen to host their sites with 3Essentials, 3Essentials will not be responsible for and will not investigate or troubleshoot connectivity or response time issues from non-U.S. based locations.
6.e. Maintenance. 3Essentials may, at its own discretion and without notice, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of 3Essentials’ systems. 3Essentials shall restore service as soon as is reasonably practicable. Client shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond 3Essentials control or which is reasonable in duration.
6.f. UnMetered/Unlimited Web Site Storage And Transfer.Plans that include unlimited storage are intended to be used for the purpose of hosting web sites. Using a hosting account primarily for online file storage or archiving electronic files is prohibited.
For shared hosting environments to ensure fast and reliable service to all of 3Essentials’ Clients, hosting space that adversely affects server and/or network performance will be notified to cease such use. At such time 3Essentials’ Client(s) will be offered to upgrade to a virtual or dedicated server, otherwise the hosting space will be removed from the 3Essentials shared hosting environment
6.g Security and Data Backup. The parties expressly recognize that it is impossible to maintain flawless security, but 3Essentials shall take reasonable steps to prevent security breaches in 3Essentials’ server interaction with Client and security breaches in 3Essentials’ server interaction with resources or users outside of any firewall that may be built into 3Essentials’ server. However, Client is solely responsible for preventing password protected pages within its Web Site from being automatically indexed and linked to search engine Robots or Spiders. Client is solely responsible for monitoring any changes to client’s web site and periodically reviewing web site files for unauthorized changes. Client is solely responsible for any damage caused by such unauthorized access. Client indemnifies and holds 3Essentials harmless for any compromise of Client's security.
6.i. Nightly Backups. 3Essentials servers are backed up every night. However, 3Essentials does not provide customer file restore services. Backups are performed for disaster recovery of 3Essentials’ servers only. Client is strongly encouraged to retain backup copies of customers’ data in the event of data loss. Client indemnifies and holds 3Essentials harmless for any data loss while files are retained on 3Essentials equipment.
6.j. Privacy. Message and data encryption is enabled on 3Essentials’ server, however Client is solely responsible for encoding its Web Site to conform to generally accepted encryption standards.
6.k. Caching Permitted by 3Essentials. Client expressly grants to 3Essentials a limited license to cache the entirety of Client's Web Site in RAM.Client expressly agrees that such caching is not an infringement of any of Client's Intellectual Property Rights.
6.l. Export Control. Client agrees that its Web Site shall comply with all export, re-export or import laws and regulations of any jurisdiction from which Client's Web Site is transmitted or accessed. Client agrees that it shall obtain written authority from all appropriate governmental bodies if Client intends at any time to re-export any items originating from that jurisdiction to any proscribed destination.
6.m. Log Files. 3Essentials retains hosting related log files for clients’ website for 7 days. Log files older than 7 days will be deleted from the server.
6.n. Search Engines. Client is solely responsible for clients’ web site being searched and indexed by search engines.
7. Auto Upgrade Of Plans. Client agrees that in the event the clients plan exceeds its allotted data transfer or storage that 3Essentials may automatically upgrade the clients plan to the next plan that will cover such transfer or storage. 3Essentials agrees that in the event of such an upgrade notice shall be given in the form of email. In the event the client does not receive the email, the client shall not hold 3Essentials liable. Client further agrees that no refund(s) will be given.
8. SITE CONTENT
8.a. 3Essentials is not responsible for any data provided by Client or Client’s customer (collectively “Site Content”) hosted by 3Essentials, in whatever form, and/or uploaded to 3Essentials servers. Site Content includes, but is not limited to, pictures, documents, music, software, graphics, videos, sounds, messages, or other media; use of trademarks, service marks, and trade names; and any other content, whether user-generated or otherwise.
8.b. Client hereby warrants that the Site Content posted, transmitted, shared, or otherwise contributed by Client or any third party will not violate or infringe upon the rights of third parties, including without limitation the proprietary rights, including copyright, trademark, privacy, publicity, or other personal or proprietary rights of any third party, will not contain defamatory material, will not contain otherwise unlawful material, and will comply with all federal and state laws.
8.c. Client acknowledges and agrees that 3Essentials is not liable for any Site Content but may, but is not obligated to, review, monitor, edit, refuse, or modify Site Content at any time and for any reason. Client further acknowledges and agrees that 3Essentials may delete or remove, with or without notice, any Site Content for any reason and for no reason, within its sole and absolute discretion, or that violates law, these Terms of Service, or which might be offensive, harmful, or threatening to the safety of others.
8.e. Notifications regarding allegedly infringing material will be handled in accordance with the Digital Millennium Copyright Act, as incorporated into 3Essentials' Copyright Policy.
9. Payment, Refunds, Money back Guarantees
9.a. 3Essentials reserves the right to cancel any account that is 5 days late on payment, and charge a re-instatement fee of $25 to re-instate the account.
9.b. No refunds will be given, for any reason, to accounts that are older than 30 days, this includes, but is not limited to data loss, server or systems being unavailable, or websites being unavailable.
9.c. Client agrees that it's the sole responsibility of the client to make payment via the methods provided by 3Essentials.
9.d. Client agrees that it's the sole responsibility of the client to manage and seek payment for its customers and that 3Essentials is held blameless for disputes that arise over the clients and its customer’s payments.
9.e. Accounts that are terminated by 3Essentials due to a violation of these Terms are not eligible for a refund, under the 30 Day Money back Guarantee.
9.f. Pre-payment. Accounts that pay in advance for a specific period are not eligible for a refund if the client cancels the account prior to the renewal date, or the account is terminated by 3Essentials due to a violation of these terms.
9.g. 30 Day Money Back Guarantee. Accounts that are terminated by the client within the initial 30 days, and are not subject to restrictions set forth in this section, are eligible for a full refund of the initial hosting payment only. No refund will be given by 3Essentials for Domain Registration Fees, SSL Certificate Fees or any other fee incurred by the client.
9.h. Auto-Renewals. Client agrees that the term of the plan automatically renews on the renewal date for the same term. Cancelations that are received after the plan automatically renews are not subject to refunds.
9.i. 3Essentials reserves the right to terminate any account for any reason with 30 days notice. Notice may be provided via email.
9.j. There will be a $25 re-instatement fee per account that receives a chargeback.
10.a. Liability Limitations. The goods and services provided by 3Essentials are provided AS IS, WITHOUT WARRANTY OF ANY KIND TO CLIENT OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE. CLIENT AGREES THAT ANY EFFORTS BY 3Essentials TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY 3Essentials WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. CLIENT FURTHER AGREES THAT 3Essentials SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF 3Essentials WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO CLIENT'S WEB SITE BY CLIENT OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES.
Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, 3Essentials’ liability is limited to the greatest extent permitted by law.
10.b. 3Essentials Not Liable for Delays or Defaults. 3Essentials shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of 3Essentials are due to:
10.b.i. Acts of God or of a public enemy;
10.b.ii. Acts of the United States or any state or political subdivision thereof;
10.b.iii. Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;
10.b.iv. Embargoes, epidemics or quarantine restrictions;
10.b.v. Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind;
10.b.vi. Delays of supplier or delay of transportation for any reason;
10.b.vii. Causes beyond the control of 3Essentials in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of 3Essentials by Client for any claim for damages, setoff, discount or other liability on account of delay.
10.c. Third Party Transactions at Client's Peril. The parties expressly recognize that 3Essentials does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with 3Essentials. 3Essentials does not make any express or implied warranties, representations or endorsements to Client or any third party whatsoever with regard to any information, products or services provided through 3Essentials and obtained or contracted over the Internet, including, without limitation, warranties of: 1) merchantability; 2) fitness for a particular purpose; 3) effort to achieve purpose; 4) quality; 5) accuracy; 6) non-infringement; and 7) title. 3Essentials shall not be liable to Client or any third party for any cost or damage arising either directly or indirectly from any transaction involving third parties' information, products or services. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, 3Essentials 's liability is limited to the greatest extent permitted by law.
10.d. Downloading of Data or Files at Client's Peril. The parties expressly recognize that 3Essentials cannot and does not guarantee or warrant that files available for downloading through 3Essentials will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client's particular requirements for accuracy of data input and output, and for maintaining a means external to 3Essentials for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client's sole risk.
12.a. Termination by 3Essentials
12.a.i. No Cause. 3Essentials reserves the right to, and Client agrees that 3Essentials may, terminate any and all services to Client for no cause and without any reason upon thirty (30) days' notice.
12.a.ii. Non-Payment and Violation of TOS. 3Essentials reserves the right to, and Client agrees that 3Essentials may, immediately, withour prior notice, terminate any and all services to Client for non-payment and/or violation of these Terms of Service.
12.b. Termination by Client. Client reserves the right to cancel Client’s account with 3Essentials by visiting www.3essentials.com/cancel.asp. Client agrees that once cancel request is submitted 3Essentials will terminate billing and remove clients website including all web pages and email from 3Essentials servers.
12.b.i. Client's Support of Web Site and 3Essentials's Remedy. It is understood that 3Essentials has advanced and will advance many man hours of services and much equipment in order to host Client's Web Site. 3Essentials' compensation for said goods and services is contingent upon receiving payment from Client. As such, Client agrees to Pay 3Essentials on time.
12.c. Post-Termination Rights.
12.c.i. Fees Owed to 3Essentials . After termination by any party for any reason, 3Essentials shall retain the right to recover all accrued charges due and owing by Client to 3Essentials, and Client agrees that it waives any right it may have against 3Essentials to offset fees payable by Client to 3Essentials.Client is responsible for any and all attorneys fees and costs necessary to collected fees owed to 3Essentials.
12.c.iii. Forwarding Notice and Hyperlink. Immediately upon termination by Client or by 3Essentials, Client agrees that no forwarding hyperlink or forwarding of email will be provided by 3Essentials or from 3Essentials’ servers.
13. DELEGATION OF DUTIES
3Essentials reserves the right to delegate any of its duties under this Agreement to any other person, entity or subcontractor.
14. CONFIDENTIAL INFORMATION
14.a. Confidentiality. The parties recognize that each shall come into possession of information that comprises valuable trade secrets and other confidential information ("Confidential Information'') which is exclusively owned by the conveying party. Both parties expressly recognize that Confidential Information is being conveyed to them under conditions of confidentiality, and agree that they shall not disclose Confidential Information to any third party during the term of this Agreement, and for a period of three (3) years following the termination or expiration of this Agreement. The parties may, however, disclose Confidential Information only to their employees who need to know Confidential Information in order to assure the parties' compliance with the other terms and conditions of this Agreement. Moreover, pursuant to court order, parties may disclose Confidential Information.
14.b. Non-Solicitation of Employees. The parties recognize that the other's employees are uniquely qualified for their jobs, and that the identity of both parties' employees is Confidential Information. Therefore, the parties agree that, during the term of this Agreement and for a period of three (3) years following the termination or expiration of this Agreement, neither party shall solicit the employment of, nor employ, any of the other party's employees.
The failure of 3Essentials to seek relief for the party's breach of any duty under this Agreement shall not waive any right of 3Essentials to seek relief for any subsequent breach.
17. ARBITRATION. CLIENT AND 3ESSENTIALS AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR CORRELATING TO THIS AGREEMENT, OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, OR VIOLATION OR TERMINATION HEREOF, WILL BE FINALLY AND CONCLUSIVELY SETTLED BY ARBITRATION. THE ARBITRATION WILL BE HELD IN COUNTY OF WAYNE, STATE OF NORTH CAROLINA, PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BEFORE A SINGLE ARBITRATOR. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF APPLICABLE LEGAL PRINCIPLES AND WILL HAVE DISCRETION TO AWARD COSTS AND FEES. HOWEVER, THE LOSING PARTY SHALL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEY’S FEES.
All notices to 3Essentials must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested to:
2719 Graves Dr
Goldsboro, NC 27534
19. ENTIRE AGREEMENT
This Agreement supersede any and all oral agreements between the parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements between the parties with respect thereto. This Agreement may be amended or modified only in writing, and shall be effective once the Client has submitted payment and 3Essentials has received said payment.
If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired, and shall continue in full force and effect.
Captions contained in this Agreement are for reference purposes only, and are not intended by either party to describe, interpret, define, broaden or limit the scope, extent or intent of the Agreement or any of its provisions.
22. KNOWING CONSENT AND AUTHORITY TO CONSENT
The parties knowingly and expressly consent to the foregoing terms and conditions.
23. UPDATES TO THIS AGREEMENT
Effective Date: June 23, 2010