Terms of service
Server Hosting & Maintenance
Service Level Agreement
hosting services provided by Motivational Marketing Associates, LLC ("MMA").
Generally, MMA servers may be used for lawful purposes only. The failure
by a customer to meet or follow the terms of this Agreement is grounds
for account deactivation. MMA will be the sole arbiter as to what constitutes
a violation of this Agreement for this purpose and MMA reserves the right
to remove any account without prior notice.
This Server Hosting and Maintenance Agreement (this "Agreement" or "SLA")
is made as of the date that hosting services are activated between
Motivational Marketing Associates, LLC, a New York limited liability company
hereinafter referred to as "MMA", and the party purchasing hosting services, referred to herein as "Client".
MMA agrees to provide, and Client agrees to purchase, server hosting
and maintenance services, as described herein, subject to the terms and
conditions contained herein.
MMA will provide to Client server hosting and maintenance services for
a "Starter Account, "Commerce Account", or Enterprise Account
as described in Account Features hereto, which is
incorporated herein and made a part of this Agreement.
Payment for services
Client agrees to accept automatic credit card charges to be processed monthly (unless agreed otherwise by both parties) on the day prior to the start of the next hosting service month. Client notices of cancellation must be received at least seven days prior to the billing/ charge processing date.
It is client's responsibility to ensure that billing information on record
is accurate and up-to-date. In cases where the payment transaction cannot
be completed, termination of service and a re-activation fee equal to one month's hosting fee may also
Web Site Availability
This Service Level Agreement (SLA) applies
to you ("customer") if you have ordered any of the following
hosting account services from MMA (the "Services") and your account
is current (i.e., not past due). (Bronze, Silver, Gold, Starter,
Commerce, Enterprise, Dedicated Server). As used herein, the term "Web Site Availability" means
the percentage of a particular month (based on 24-hour days for
the number of days in the subject month) that the content of
customer's Web site is available for access by third parties
via HTTP and
HTTPS, as measured by MMA.
- Service Level
- Goal: MMA's goal is to achieve 100% Web Site Availability for
- Remedy: Subject to exceptions below, if the Web Site
Availability of customer's Web site is less than 99.8%, MMA
will issue a credit to customer in accordance with the following
schedule, with the credit being calculated on the basis of the
service charge for the affected Services:
|Web Site Availability
|99.8 to 100%
|98% to 99.7%
|95% to 97.9%
|90% to 94.9%
|89.9% or below
- Exceptions: Customer shall not receive any credits under this
SLA in connection with any failure or deficiency of Web Site Availability
caused by or associated with:
- circumstances beyond MMA's reasonable control, including, without
limitation, acts of any governmental body, war, insurrection,
sabotage, armed conflict, embargo, fire, flood, earthquake, strike
or other labor disturbance, interruption of or delay in transportation,
unavailability of or interruption or delay in telecommunications
or third party services, virus or denial of service attacks or
hackers, failure of third party software (including, without
limitation, ecommerce software, payment gateways, chat, statistics
or free scripts) or inability to obtain raw materials, supplies,
or power used in or equipment needed for provision of this SLA.
- failure of access circuits to the MMA network, unless such
failure is caused solely by MMA.
- scheduled maintenance and emergency maintenance and upgrades.
- DNS issues outside the direct control of MMA.
- issues with FTP, POP, or SMTP customer access.
- false SLA breaches reported as a result of outages or errors
of any MMA measurement system.
- customer's acts or omissions (or acts or omissions of others
engaged or authorized by customer), including, without limitation,
custom scripting or coding (e.g., cgi, Perl, HTML, php, mySql,
PostgreSQL, Java, etc.), any negligence, willful misconduct,
or use of the Services in violation of MMA's Terms and Conditions
and Acceptable Use Policy.
- e-mail or webmail delivery and transmission.
- DNS (Domain Name Server) Propagation.
- outages elsewhere on the Internet that hinder access to your
- MMA is not responsible for browser or DNS caching that
may make your site appear inaccessible when others can still
- MMA will guarantee only those areas considered
under the control of MMA: MMA server links to the Internet,
and MMA's servers.
- Credit Request and Payment Procedures: To receive a credit
for a hosting account, the customer must make a request therefore by
sending an e-mail message to email@example.com.
The e-mail message MUST include the domain name of the customer's account
in the "Subject" line. Each request in connection
with this SLA must include the customer's account number (per MMA's
invoice or sales receipt) and the dates and times of the unavailability
of customer's Web site and must be received by MMA within five (5)
business days after the customer's Web Site was not available. If the
unavailability is confirmed by MMA, credits will be applied to the
next billing cycle after MMA's receipt of the customer's credit request.
Credits are not refundable and can be used only towards future billing
Notwithstanding anything to the contrary herein, the total amount
credited to customer in a particular month under this SLA shall not
exceed the total hosting fee paid by customer for such month for the
affected Services. Credits are exclusive of any applicable taxes charged
to customer or collected by MMA and are customer's sole and exclusive
remedy with respect to any failure or deficiency in the Web Site Availability
of customer's Web site. Note: Credits are not refundable and can be used only towards
future billing charges.
- Data Backup: MMA provides complete data backups weekly and incremental backups daily. Customer acknowledges and agrees that backups are not intended as a comprehensive disaster recovery solution. MMA makes no claims, guarantees, or warranties regarding the availability or performance of the backups. MMA strongly recommends that clients maintain offsite backup copies of all web site and data files as an extra precaution.
General Conduct and Use of MMA Services; Indemnification
Client shall not transmit on or through any of MMA's services, any
material that is, in MMA's sole judgement, unlawful, obscene, of an "adult
nature", pornographic, threatening, abusive, libelous, or encourages
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, federal or international law. Transmission,
distribution, or storage of any information, data or material in violation
of federal or state regulation or law (including common law) is prohibited.
Such data or material includes, but is not limited to, material protected
by copyright, trademark, trade secret, or any other statute, as to which
transmission or use is unauthorized of constitutes an infringement of
property rights. Client is solely responsible for any legal liability
(whether alleged against Client, MMA or both) arising out of or related
to its Web pages or any Web pages to which users can link through its
Web pages or any e-mail of Client. Client represents and warrants to MMA
that Client1s Web pages shall comply with MMA's standards, as described
in this Agreement, and that Client holds the rights necessary to permit
use of any and all files, media or other materials uploaded to MMA's servers
and that the use, reproduction, distribution, or transmission of Client1s
Web site graphics, text and materials does not violate any statutory,
civil or criminal laws, or common law, or any rights of third parties,
including, but not limited to, such violations as infringement or misappropriation
of any patent, copyright, trademark, trade name, trade secret or other
proprietary rights of third parties in written material, music/sounds,
film/video, photographic or other images or material. Client further represents
and warrants to MMA that all files, media or other materials uploaded
to MMA's servers shall not contain any false or misleading advertising
and do not constitute unfair competition, defamation, invasion of privacy,
misappropriation of rights of celebrity, violation of any anti-discrimination
laws, or violation of any other right of any individual or organization
or contain anything libelous. Client agrees to indemnify MMA and hold
MMA harmless from any and all liability, loss, damages, claims, or causes
of action, including legal fees and expenses, which may arise or be incurred
by MMA as a result of Client's breach of any of the forgoing representations
and warranties, unless such liability is directly attributable to the
gross negligence or willful misconduct of MMA.
Client shall not use MMA's network to attempt to circumvent user authentication
or security of any host, network, or account. The foregoing includes,
but is not limited to, accessing data not intended for Client, logging
into a server or account that Client is not expressly authorized to access,
password cracking, probing the security of other networks in search of
weakness, or violation of any other organization's security policy. Clients
may not attempt to interfere with, or deny service to, any user, host,
or network. This includes, but is not limited to, "flooding"; "mailbombing",
or other deliberate attempts to overload or crash a host or network.
Client shall be responsible to maintain security of all forms and scripts and to upgrade same to prevent exploitation by third parties. This includes but is not limited to open proxies and other types of misuse. Failure to comply may result in removal of the insecure form/ script, and deactivation of the client's account(s) without prior notification.
Mass E-Mail Restrictions
MMA has a policy of zero tolerance for Unsolicited Commercial E-mail ("UCE")
that is in any way associated with MMA, its clients, or any of its clients'
associates. Client is specifically prohibited from using UCE as a means
of advertising data or services hosted on MMA's network, or using the
network to distribute such materials. Client is further prohibited from:
selling bulk E-mail software (spamware) which has a "stealth" or filter
avoidance mode; selling software designed to harvest E-mail addresses
from the net; selling E-mail addresses extracted from the net, "targeted"
or not; selling services, media or software with spammer specific features;
providing bulk mailing services; providing services
for spammers; redirecting to or promoting links to web sites which do
any of the above; causing any MMA IP address to be "black listed". Violation of this policy may result in any one of the
following: (i) a warning from MMA via e-mail or phone, (ii) removal of
the domain name server ("DNS") for the advertised / originating site,
(ii) temporary shutdown of the server or a block on outgoing mail, or
(iv) permanent disconnection of service. Violations of this policy include,
but are not limited to: (i) sending mail to users who have not specifically
requested receipt of such mail, (ii) sending, being involved in sending, or employing a third party to send
mail which advertises or mentions a site hosted at MMA to users that have
not specifically requested this mail and (iii) forging of message headers
to mask the originator of the message. Resellers will be held responsible
for the actions of your clients in this matter. Please review the information
at http://spam.abuse.net for more information on what constitutes UCE,
or 'Spam.' The foregoing rules apply to other types of Internet-based
message distribution, including but not limited to usenet news groups,
message boards, instant messaging, and chat rooms.
Due to the public nature of the Internet, all information should be considered
publicly accessible, and important or private information should be treated
carefully. MMA is not liable for protection or privacy of electronic mail
or other information transferred through the Internet or any other network
server Client may utilize.
Remedies of MMA; Right To Deactivate Account
When MMA becomes aware of an alleged violation of this Agreement,
MMA will initiate an investigation. During the investigation, MMA (without
prior notice) may restrict Client1s access in order to prevent further
potentially unauthorized activity. Depending on the severity of the violation,
MMA may, in its sole discretion, restrict, suspend, or terminate Client's
web hosting account and/or pursue other civil remedies. If such violation
is a criminal offense, MMA will notify the appropriate law enforcement
authorities of such violation. MMA does not issue credits for outages
incurred through service disablement resulting from violation of this
Agreement. MMA reserves the right, in its sole discretion, to deactivate
the Client's server account(s), without prior notice for any violation
of any of MMA's policies or, after e-mailing notice to Client, upon failure
to pay fees or expiration or termination of the credit card supporting
Client's account with MMA. Client may terminate this Agreement upon providing
MMA with written notice prior to the start of Client's next hosting service
period. In the event of deactivation or termination by either party, all
of Client's website html, cgi, source code, and image files will remain
the property of Client, and MMA will provide Client with access to same
after notice of deactivation of services or termination, provided any
and all current and/or past due payments due to MMA have been paid.
IP Number & Addresses
MMA shall maintain control and ownership of any and all I.P. numbers
and addresses that may be assigned to Client and reserves the right, in
MMA1s sole discretion, to change or remove any and all IP numbers and
addresses. Domain Name Client shall maintain control and ownership of
its registered Domain Name. Billing Client is responsible for keeping
his/her/its billing data with MMA up-to-date and accurate. Furnishing
false data on any contract or application, (including this Agreement)
including fraudulent use of credit card numbers, is grounds for immediate
termination, and may subject the offender to civil or criminal liability.
No Warranty and Limitation of Liability of MMA
SERVER HOSTING SERVICE IS PROVIDED ON AN "AS IS","AS AVAILABLE" BASIS.
MMA GIVES NO WARRANTY, EXPRESSED OR IMPLIED, FOR THE SERVER SERVICES PROVIDED,
INCLUDING, WITHOUT LIMITATION,WARRANTY OF MERCHANTABILITY AND/OR WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE. THIS STATEMENT EXPRESSLY INCLUDES
ANY REIMBURSEMENT FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE BY
MMA OR ITS PROVIDERS BEYOND THE FEES PAID BY CLIENT TO MMA FOR SERVICES.
MMA shall not be not responsible for any damages arising from Client's
use of MMA services or by Client's inability to use MMA Server services
for any reason. Client and those using the Services through Client shall at all times comply with the
then-current version of MMA's Acceptable Use Policy specified at
www.mmaweb.net/terms.html, which is incorporated into and made a part
of this Agreement. MMA may amend the Acceptable Use Policy from time to time, which amendments shall be
effective upon their posting at such website. MMA may take any of the preventative or
corrective actions specified in the Acceptable Use Policy, up to and including suspension of the Services
or termination of the Agreement, which suspension or termination shall not relieve
Client of its obligation to pay the fees for the Services. Client acknowledges and
amended from time to time. Client is solely responsible for complying with federal, state and local statutes, rules and
regulations. Client shall indemnify, defend and hold harmless MMA and its affiliates
from and against any claims, causes of action, losses, damages, costs or expenses
(collectively, "Claims") arising out of or relating to use by or through Client of the
Services in any way, including any breach of the Acceptable Use Policy or these Terms and Conditions. In no case will MMA be liable to Client for any special,
incidental or consequential damages, whether based on breach of contract,
tort (including negligence), or otherwise, and whether or not MMA has
been advised of the possibility of such damage. In the event it is necessary
to refer any dispute to an attorney or resolve it in a court of law, the
prevailing party will be entitled to an award of reasonable attorney's
fees and all costs associated with any legal action.
Governing Law and Venue
This Agreement is governed by the internal laws of the State of New York.
Client hereby irrevocably submits to the exclusive jurisdiction of the
state courts of the State of New York in Erie County, New York and to
the jurisdiction of the United States District Court for the Western District
of New York, for the purposes of any suit, action or other proceeding
arising out of or based upon this Agreement or the subject matter hereof.
Client, to the extent permitted by applicable law hereby waives, and agrees
not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding brought in the above-named courts, any claim
that it is not subject personally to the jurisdiction of such courts,
that its property is exempt or immune from attachment or execution, that
the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is improper or that this Agreement
or the subject matter hereof may not be enforced in or by such court.
Client hereby consents to service of process by mail, at its address given
in the Account Order hereto. Final judgment against Client in any such
action, suit or proceeding shall be conclusive, and may be enforced in
any other jurisdiction by suit, action or proceeding on the judgment,
a certified or true copy of which shall be conclusive evidence of the
fact and the amount of indebtedness or liability of Client therein described
or in any other manner provided by, or pursuant to, the laws of such
This Agreement and any and all exhibits and attachments are the complete
and exclusive agreement between the parties with respect to the subject
matter hereof, replacing any and all prior agreements, communications,
and understandings (both oral and written) regarding such subject matter.
The terms and conditions of this Agreement will prevail over any conflicting
or inconsistent terms in any purchase order or other correspondence. This
Agreement may only be modified, or any rights under it waived, by a written
document executed by both parties.
Acceptable Use Policy