Terms of Service
This agreement between Brandesigns Web Solutions and Customer governs provision of Brandesigns’s Hosting and Web Design services (the "Service"). This Agreement is effective as of the moment Customer (a) indicates assent through the Brandesigns Website or (b) establishes an account with Brandesigns or uses the Service or any element thereof. Brandesigns may revise this Agreement from time to time by posting a new version hereof on the Brandesigns Website, and if Customer signed up for the Service under a previous version, such revised terms will become effective thirty (30) days after the Posted/Revised date listed above ("New Effective Date"). Continued use of the Service after the New Effective Date constitutes acceptance of such revisions to this Agreement.
1.(a) The Service. The Service includes the features and restrictions set forth in the service package purchased by Customer (the "Package"). Customer agrees to the following terms and conditions regarding the term and termination of this Agreement and regarding billing cycles for each of the following Packages (in addition to such other provisions as the Package may include): (i) Month-to-Month Package: Customer pays monthly and may terminate for convenience with thirty (30) days notice. Brandesigns is not obligated to refund any payments in the event of such termination.
(ii) Prepaid Package: Customer pre-pays for the entire Service period in question ("Service Period"), typically six (3) months or one (1) year. Customer may terminate for convenience on thirty (30) days notice. After such termination, Customer will receive a refund for the remainder of the period of Service, minus an adjustment equal to the difference between the amount Customer has paid and the amount it would have paid had it received Service pursuant to a Month-to-Month Package. If not terminated, the Prepaid Package renews at the end of the Service Period as a Prepaid Package for a Service Period of the same duration.
(iii) Term Contract Package: Customer pays monthly but may terminate for convenience only at the end of the Service Period, on thirty (30) days notice. Brandesigns is not obligated to refund any payments in the event of such termination. If not terminated, the Term Contract Package renews at the end of the Service Period as a Term Contract Package for a new Service Period of the same duration. Customer will retain records of the terms and conditions of its Package for future reference. Brandesigns may change Package prices or add or delete Package features or restrictions at any time, and such changes will become effective in thirty (30) days for Month-to-Month Packages and at the end of the Service Period for Prepaid and Term Contract Packages. In the event of any conflict between the terms of any Package and the terms of this Agreement, the terms of this Agreement will govern.
(b) In the event that Customer is dissatisfied with the Service, including without limitation any new feature or restriction, Customer’s sole remedy will be termination of this Agreement pursuant to the provisions of Subsection 1(a) above and Section 3 below.
(a) Customer will pay Brandesigns in advance for provision of the Service pursuant to the requirements of Customer’s Package. If Customer exceeds its Package’s transfer allotment, bandwidth commitment, or pre-paid Service allotment during any month,
(i) Brandesigns may charge Customer for such overage immediately or on the next invoice, as Brandesigns deems appropriate; and
(ii) Brandesigns may require monthly or other periodic payment for such increased usage level in advance of provision of the Service from that point forward. The provisions of the preceding sentence apply regardless of the cause of such overage, even if hacker activity or other third party activity caused the overage. Customer is responsible for monitoring transfer, bandwidth utilization, and other metered services.
(b) Invoices are issued as a courtesy; Customer will maintain awareness of its usage levels and the fees it owes Brandesigns and will pay them when due. All invoices are due upon their date of issuance and will be considered overdue if not paid within 30 days. If Customer pays by a method other than credit card, Customer must have all payments submitted on or before their invoice overdue dates. Any payment not paid when due will, at Brandesigns’ option, bear interest at a rate of fifteen percent (12%) per year from the date due until paid. In addition to interest payments, Brandesigns may charge a late fee of $24.99 per month, starting on the first day after any payment is due. Such late fees are intended to defray Brandesigns’ costs resulting from late payments and will constitute liquidated damages. The parties agree that such liquidated damages are reasonable in light of the harm delay will cause and the difficulties of proof of loss and the inconvenience and unfeasibility of otherwise obtaining an adequate remedy. None of the remedies listed in this subsection is exclusive of other remedies.
(c) Customer will keep a valid credit card on file with Brandesigns. Customer will update credit card information as necessary (and may do so in the Brandesigns customer portal, in the billing section). If paying by credit card, Customer will be charged the first business day of the account due date, and Brandesigns may interrupt Service if a charge attempt is denied. If a charge attempt is denied, Brandesigns may levy a $9.99 declined credit card fee for each unsuccessful attempt.
(d) A Returned check will constitute a material breach of this Agreement, and Customer will incur a $50.00 returned check charge, in addition to any other remedies available to Brandesigns.
(e) Brandesigns is not required to issue refunds or credits except as explicitly specified in this Agreement.
Brandesigns policies and procedures for handling customer information have been created with the understanding that Internet technologies are still evolving and that Internet business methods are continuing to evolve to meet the needs and opportunities of the changing technologies. As a result, Brandesigns policies and procedures are subject to change.
In the course of serving its customers, Brandesigns acquires, stores and transmits customer communications and information that customers may regard as private or sensitive. Some of this information – such as the customer’s name, address, telephone number, and credit card data – is provided to Brandesigns by its customers in order to establish service. Other information – such as the customer’s account status, choice of services, and customer logs – is created and maintained by Brandesigns in the normal course of providing service.
1. Data Security – Brandesigns will protect the confidentiality of its customers’ information, account information and personal communications in consistency with the law and the legitimate interests of Brandesigns, its partners, its employees and other customers of Brandesigns services. How is customer information used? Brandesigns may use customer information to provide its customers with system information or information about new or upgraded products. Brandesigns does not rent, sell, or share customer data or personal information with any third parties.
3. Disclosure of customer information and communications – Brandesigns will not otherwise disclose its customers’ personal and account information unless Brandesigns has reason to believe that disclosing such information is necessary to identify, make contact with, or bring legal action against someone who may be causing harm or interfering with the rights or property of Brandesigns, Brandesigns customers, or others, or where Brandesigns has a good faith belief that the law requires such disclosure. Brandesigns also will not, except for reasons stated below, disclose to third parties the contents of any electronic mail or other electronic communications that Brandesigns stores or transmits for its customers. The circumstances under which Brandesigns will disclose such electronic customer communications are when:
a) it is necessary in order to provide service to the customer;
b) it is necessary to protect the legitimate interests of Brandesigns and its customers;
c) it is required to cooperate with interception orders, warrants, or other legal process that Brandesigns determines in its sole discretion to be valid and enforceable; and
d) it is necessary to provide to a law enforcement agency when the contents are inadvertently obtained by Brandesigns and appear to pertain to the commission of a crime.
Brandesigns disclaims any intention to censor, edit or engage in ongoing review or surveillance of communications stored on or transmitted through its facilities by customers or others. Brandesigns will, however, review, delete or block access to communications that may harm Brandesigns, its customers or third parties. The grounds on which Brandesigns may take such action include, but are not limited to, actual or potential violations of Brandesigns Acceptable Use Policy.
Terms of Agreement
Term & Termination
1. This Agreement will continue until terminated by either party pursuant to the procedures set forth herein.
2. Customer may terminate this Agreement for convenience pursuant to the provisions of its Package outlined in section 1(a) of Service Agreement; provided that Customer will provide the required notice of termination through the online cancellation form in the Brandesigns customer portal.
3. If Customer has a Month-to-Month Package or a Prepaid Package, Brandesigns may terminate this Agreement for convenience on thirty (30) days notice; provided that Brandesigns will refund any amounts paid pursuant to a Prepaid Package for the remainder of the Service Period. If Customer has a Term Contract Package, Brandesigns may terminate this Agreement for convenience at the end of the Service Period.
4. In the event of any breach of this Agreement, including without limitation any breach of the provisions of Brandesigns Acceptable Use Policy or of the payment obligations set forth in Section 2 of the Service Agreement, Brandesigns may terminate the Services, any portion thereof, or this Agreement, immediately and without advanced notice. Brandesigns is not required to return any data or personal property to Customer after such termination, or to refund any fees paid or prepaid.
5. Ownership of Data, Software, Hardware, and IP Addresses. All software, hardware and Internet protocol ("IP") addresses provided by Brandesigns are licensed to Customer and remain Brandesigns sole and exclusive property.
6. Maintenance, Security, & Service Interruption.
(a) Brandesigns may interrupt Service to perform maintenance. Brandesigns will exercise reasonable efforts (i) to inform Customer before interrupting Service and (ii) to repair the system promptly.
(b) Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups. Brandesigns is not responsible for providing physical access to or copies of the software, data, or content stored on the system under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s account or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access not resulting from Brandesigns fault. Brandesigns will not be liable for loss of data or for breaches in system integrity, even if Customer’s Package includes firewalls, backups, denial of service protections, or other mechanisms to protect data and system integrity. In the event that Brandesigns suspects that security of any of its equipment has been breached, it may disable such equipment and the Service.
(c) Notwithstanding any provision to the contrary elsewhere in this Agreement, Brandesigns may immediately and without notice terminate this Agreement, suspend Service, or remove Customer’s material or information from Brandesigns equipment, in whole or in part, in the event of a violation or suspected violation of the terms of the Acceptable Use Section, including without limitation in the event that Brandesigns receives a notice or claim that Customer’s use of the Service infringes or violates third party rights. Brandesigns may require that Customer pay the investigation fees referred to in Section 3 of the Acceptable Use Section before Brandesigns provides additional Service to Customer after such suspension or removal of materials and may require that customer prepay investigation fees, additional attorneys’ fees, or other costs likely to be incurred as a result of provision of continued Service.
(d) In the event that Customer’s use of the Service causes a denial of service or in any other way injures the functioning of services Brandesigns provides to other customers, Brandesigns may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Customer’s.
(e) Brandesigns will not be liable for service interruptions, including without limitation interruptions executed in order to investigate suspected violations of the Acceptable Use Section, whether or not such violations occurred.
(f) Customer will promptly report any Service failures to Brandesigns via the online ticketing system found in the Brandesigns customer portal. Customer recognizes that any expenses it incurs for System diagnosis or repair, including without limitation expenses for outside consultants, are non refundable unless approved in writing for refund in advance by Brandesigns.
2. Without limiting the generality of the foregoing, in its use of the Service or the Brandesigns equipment, Customer will not: (i) disseminate ANY unsolicited e-mail messages ("Spam"), whether such Spam is legal or illegal; (ii) host any content advertised by or in connection with Spam; (iii) violate the CAN-SPAM Act of 2003; (iv) perpetrate any security breach, network attack, act of hacking, or distribution of any virus, worm, or other harmful code; (v) perpetrate any fraud, intellectual property infringement, or act of child pornography; (vi) disseminate or post any material or information that is or may be threatening, libelous, obscene, harassing, or offensive; (vii) threaten or harass any Brandesigns employees, agents, or representative by telephone, in person, or through any other means of communication; (viii) perpetrate any crime or other illegal activity; (ix) tamper with other Brandesigns accounts, commit unauthorized intrusion into any part of Brandesigns system, or access any Brandesigns system not included in Customer’s package; (x) scan Brandesigns or any other network; (xi) use the Service for password cracking, for defrauding others into releasing passwords, for denial-of-service attacks (including without limitation the sending of packets with an unauthorized packet size), for UDP flooding, for ping-flooding, for half-open TCP connection flooding, or for any other unauthorized intrusion on a third party service or system, whether or not the intrusion results in loss or corruption of data; (xii) use programs, scripts, or commands or send messages with the intent to interfere with a user’s terminal session; or (xiii) use the Services or the network to collect replies of messages sent from another provider which violate the rules of this Agreement or those of the originating provider. Nor will Customer, in its use of the Service or the Brandesigns equipment, host an Internet relay chat ("IRC") server, run IRC bots, use a Brandesigns server as an IRC client or proxy, or make any use of IRC scripts or programs that interfere with or deny service to other users on any server or network. Customer will not permit any third party to use the Service or Brandesigns equipment for any of the activities prohibited by this subsection.
3. Customer will reimburse Brandesigns for any expenses it incurs as a result of violation of the AUP or of the terms of this Section. In the event that Brandesigns investigates any such suspected violation as a result of third party requests or demands from government or law enforcement agencies, Customer will pay Brandesigns an investigation fee, even if such investigation determines that no violation took place. In the event that Brandesigns investigates on its own initiative and discovers conduct it reasonably considers a violation, Customer will pay Brandesigns an investigation fee. Investigation fees include a charge of $99.00 per person-hour for Brandesigns staff and reimbursement for any costs of outside attorneys. Brandesigns may require payment of such fees by wire transfer.
4. Customer is responsible for preventing AUP violations and other violations of the terms of this Section 4 and this Agreement by hackers and other third parties. Third party violations of the provisions of this Section will be considered violations by Customer. Brandesigns is not responsible for protecting Customer from hackers or from other third parties.
5. Brandesigns has no obligation to monitor the Services but may do so and may disclose information regarding use of the Services for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; or to protect itself and its customers. Brandesigns may grant law enforcement agencies access to its equipment to monitor Customer’s use of the Service.
6. Brandesigns reserve the right to modify or discontinue, and restrict or block access to the Service without notice to Customer. We may modify or remove any content available through the Service, including tools, applications, software, text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other material (collectively, "Content"), at any time without notice to Customer, including removal of Content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Limits of Liability
Disclaimers, Limits of Liabilities and Warranties
1. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Brandesigns DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. Brandesigns MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE PROVIDED BY Brandesigns OR ANY OF ITS REPRESENTATIVES WILL CREATE A WARRANTY.
2. Brandesigns Web Solutions will not be liable for indirect, special or consequential damages, or any loss of revenue or profits, arising in connection with the projects that we develop. Brandesigns Web Solutions reserves the right to delay or stop any project development for any reason without liability. Brandesigns Web Solutions will notify the client immediately of any changes of project development status, and make appropriate arrangements. If a stoppage in development is caused by Brandesigns Web Solutions, the client will be refunded the deposit minus any billable hours.
3. Brandesigns WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF Brandesigns WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. Brandesigns MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES BILLED TO CUSTOMER DURING THE THREE (3) MONTHS PRECEDING THE CLAIM. (d) Brandesigns WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: (i) OTHER Brandesigns CUSTOMERS OR THIRD PARTIES ACCESSING CUSTOMER’S DATA OR ASSIGNED COMPUTERS; (ii) SECURITY BREACHES; (iii) EAVESDROPPING; (iv) DENIAL OF SERVICE ATTACKS; (v) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE EQUIPMENT OR SERVICE; (vi) CUSTOMER’S RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICE; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE EQUIPMENT OR SERVICE; (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE; OR (ix) LOSS OF DATA OR LOSS OF ACCESS TO DATA. (e) Brandesigns LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION AND IN THIS AGREEMENT APPLY EQUALLY TO Brandesigns OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, REPRESENTATIVES, SUPPLIERS, SUBSIDIARIES, PARENTS, AND AFFILIATED COMPANIES.
4. Third Party Claims & Indemnity.
(a) Promptly after Brandesigns request, Customer will notify any third party, in writing, that Brandesigns is not responsible for (i) any content or materials posted on any Customer Web site or otherwise disseminated through Customer’s use of the Service or (ii) any use or abuse of the Service whatsoever by Customer or any third party.
(b) Customer will defend and indemnify Brandesigns (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation alleged infringement of third party intellectual property or privacy rights; (ii) Customer’s use, misuse, or failure to use the Service; and (iii) any action taken by Brandesigns as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.
(a) This Agreement is to be construed in accordance with and governed by the internal laws of the State of Colorado without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of Colorado to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of Fort Collins, Colorado.
(b) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy.
(c) If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby.
(d) This Agreement, with any other instrument or document referenced herein, which are incorporated by this reference as though set forth in full, embodies the final, full, and exclusive statement of the agreement between the parties, and as of its date supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to the subject-matter hereof.
(e) All written communications to Customer will be deemed delivered if sent to the contact information provided to Brandesigns at the time of order, unless Customer provides some alternate contact information in writing. All written communications to Brandesigns and all fees will be mailed to 1281 E. Magnolia Street Suite D #191, Fort Collins, Colorado 80524, unless Brandesigns posts alternate contact information at its Website.
6. End-user Abandonment Policy If you become unreachable, unlocatable, or your hosting account is suspended for an extended period of time such that it causes your end-users to seek out Brandesigns to obtain continuous service, we reserve the right to provide service to your end-users provided they place an appropriate order for service through Brandesigns usual ordering systems. You agree to hold us harmless in such instances and recognize that such incidents may have irreversible effects. For this reason, it is advisable that you stay current on your billing account and maintain valid contact information.