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 apply.
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 all customers.
- 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 monthly service charge for the affected Services:
Web Site Availability Credit Percentage 99.8 to 100% 0% 98% to 99.7% 10% 95% to 97.9% 25% 90% to 94.9% 50% 89.9% or below 100%
- 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 account.
- MMA is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it.
- MMA will guarantee only those areas considered under the control of MMA: MMA server links to the Internet, MMA’s routers, 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 charges. 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
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 other jurisdiction.
Your payment and personal information are always safe. Our Secure Sockets Layer (SSL) software is the industry standard and among the best software available today for secure commerce transactions. It encrypts all of your personal information, including credit card number, name and address, so that it cannot be read over the internet.
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.