Hosting Terms of Service
General Terms of Service
These Terms of Service (the "Agreement") are an agreement between Marketing Systems, Inc. ("MSI" or "us" or "our") and you ("User" or "you" or "your"). This Agreement sets forth the general terms and conditions of your use of the hosting and domain name services made available by MSI (collectively, the "Services"). By using the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access the Services.
1. Additional Policies and Agreements
A. Use of the Services is also governed by the following policies, which are incorporated by reference. By using the Services, you also agree to the terms of the following policies.
iii. Acceptable Use Policy
2. Account Eligibility
A. By registering for or using the Services, you represent and warrant that:
i. You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.
ii. If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party's behalf with respect to any actions you take in connection with the Services.
B. It is your responsibility to provide accurate, current, and complete information including an email address that is different from the website hosted. If there is ever an abuse issue or we need to contact you, we will use the primary email address we have on file. It is your responsibility to ensure that the contact information for your account is accurate, correct and complete at all times. MSI is not responsible for any lapse in the Services, including without limitation, any lapsed domain registrations due to outdated contact information. If you need to verify or change your contact information, you may email email@example.com to update your contact information. Providing false contact information of any kind may result in the termination of your account.
C. You agree to be fully responsible for all use of your account and for any actions that take place through your account. It is your responsibility to maintain the confidentiality of your password and other information related to the security of your account.
D. You acknowledge and accept that despite the security measures MSI takes in connection with the Services, MSI’s system and/or client websites may nonetheless become compromised, including without limitation, by hackers, Internet viruses, worms or Trojan horses, or the like. Under such circumstances, MSI may take corrective action as it deems appropriate in its sole discretion and you acknowledge and agree that MSI shall have no liability to you for any damage or loss that you may incur due to such corrective action.
E. You agree to immediately notify MSI of any unauthorized uses of the Service or any other breaches of security. You agree to immediately notify MSI if you suspect your website has become compromised so we may act promptly to protect other users of our services.
F. The Service and any data you provide to MSI is utilized in the United States (U.S.A.) unless otherwise provided. If you access the Service from outside of the U.S., you are voluntarily transferring information (potentially including personally-identifiable information) and content to the U.S.A. and you agree that our collection, use, storage and sharing of your information and content is subject to the laws of the U.S.A., and not necessarily of the jurisdiction in which you are located.
A. Our Transfers Team will make every effort to help you move your website to us. Transfers are provided as a courtesy service. We do not make any guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult, if not impossible, to migrate some or all account data. In some cases we may not be able to assist you in a transfer of data from an old host.
B. The free transfer service is available for thirty (30) days from your sign up date. Transfers outside of the thirty (30) day period will incur a charge; please contact a member of our Transfers department to receive a price quote. In no event shall MSI be held liable for any lost or missing data or files resulting from a transfer to or from our services. You are solely responsible for backing up your data in all circumstances.
4. User Content
A. You may be able to upload, store, publish, display and distribute information, text, photos, videos and other content on or through the Services (collectively, "User Content"). User Content includes any content posted by you or by users of any of your websites hosted through the Services ("User Websites"). You are solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through the Services, you represent and warrant to MSI that (i) you have all the necessary rights to post or distribute such User Content, and (ii) your posting or distribution of such User Content does not infringe or violate the rights of any third party. Solely for purposes of providing the Services, you hereby grant to MSI a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content; and (ii) make archival or back-up copies of User Content and User Websites. Except for the rights expressly granted herein, MSI does not acquire any right, title or interest in or to the User Content, all of which shall remain solely with you.
B. User Content includes, but is not limited to, all data, content and files used to make your website functional.
C. MSI exercises no control over, and accepts no responsibility for, User Content or the content of any information passing through MSI's computers, network hubs and points of presence or the Internet. MSI does not monitor User Content. However, you acknowledge and agree that MSI may, but is not obligated to, immediately take any corrective action in MSI's sole discretion, including without limitation removal of all or a portion of the User Content or User Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that MSI shall have no liability due to any corrective action that MSI may take.
E. You will use your best efforts to ensure that your User Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
5. Third Party Products and Services
A. MSI may offer certain third party products and services. Such products and services may be subject to the terms and conditions of the third party provider. Discounts, promotions and special third party offers may be subject to additional restrictions and limitations by the third party provider. You should confirm the terms of any purchase and the use of goods or services with the specific third party provider with whom you are dealing. MSI does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these third party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers. MSI is not an agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
B. The Services may contain links to other websites that are not owned or controlled by MSI ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties ("Third Party Content"). We are not responsible for any Third Party Sites or Third Party Content accessed through the Services. Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us. If you decide to access Third Party Sites or to access or use any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable third party's terms and policies, including privacy and data gathering practices of any website to which you navigate.
6. Prohibited Persons (Countries, Entities, And Individuals).
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You may not use the Services to export or re-export, or permit the export or re-export, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, MSI also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
7. Account Security and MSI Systems.
A. It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of the installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. You are required to use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change or update your password before suspending your account.
B. The Services, including all related equipment, networks and network devices are provided only for authorized customer use. MSI may, but is not obligated to, monitor our systems, including without limitation, to ensure that use is authorized, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. By using the Services, you consent to monitoring for these purposes.
C. Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control requires the express written consent of the third party. MSI may, at our discretion, request documentation to prove that your access to a third party network or system is authorized.
D. Any account which causes us to receive an abuse report may be terminated and/or have access to services suspended. If you do not remove malicious content from your account after being notified by MSI of an issue, we reserve the right to leave access to services disabled.
E. MSI reserves the right to migrate your account from one data center to another in order to comply with applicable data center policies, local law or for technical or other reasons without notice.
8. HIPAA Disclaimer. We are not "HIPAA compliant."
You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. MSI does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers requiring secure storage of "protected health information" as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to "protected health information" is a material violation of this Agreement, and grounds for immediate account termination. We do not sign "Business Associate Agreements" and you agree that MSI is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA.
9. Compatibility with the Services
A. You agree to cooperate fully with MSI in connection with MSI's provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon your performance of your obligations, MSI is not responsible for any delays due to your failure to timely perform your obligations.
B. You are solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by MSI to provide the Services, which may be changed by MSI from time to time in our sole discretion.
C. You are solely responsible for backing-up all User Content, including but not limited to, any User Websites. MSI does not warrant that we back-up any User Content, and you agree to accept the risk of loss of any and all User Content. It is essential that this includes offline backup files of your website and data.
10. Billing and Payment Information
It is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. You agree to pay for the Services in advance of the time period during which such Services are provided. Subject to applicable laws, rules, and regulations, payments received will be first applied to the oldest outstanding invoice in your billing account.
Unless otherwise provided, you agree that until and unless you notify MSI of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us. It is your responsibility to maintain current credit card information for successful billing. Failure of autorenewal payments is grounds for termination of your account.
The initial term of the Services purchased by you will be for the time period set forth when you order the Services (the "Initial Term"). Unless you cancel prior to the end of the Initial Term the Services will automatically renew for successive periods of equal length as the Initial Term (each a “Renewal Period”). You acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file up to fifteen (15) days prior to the end of each Renewal Period, unless you terminate or cancel the Services prior to such charge as provided in this Agreement. The “Term” of this Agreement shall include the Initial Term and all Renewal Periods, if any.
Listed fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to MSI's invoice as a separate charge to be paid by you. All fees are non-refundable when paid unless otherwise stated.
E. Late Payment.
All invoices must be paid within ten (10) days of the invoice due date. Any invoice that is outstanding for more than ten (10) days may result in the suspension or termination of Services. Access to the account will not be restored until payment has been received. If you fail to pay the fees as specified herein, MSI may suspend or terminate your account and pursue the collection costs incurred by MSI, including without limitation, any arbitration and legal fees, and reasonable attorneys' fees. MSI will not activate new orders or activate new packages for customers who have an outstanding balance on their account. After 30 days of non-payment all files and data may be deleted from your account. We are not responsible for any deleted or lost User Content that results from any suspension or reactivation.
F. Domain Payments.
It is solely your responsibility to notify MSI if you wish to cancel a domain name registration or renewal. Otherwise payment for domain names and renewals is due when invoiced. No refunds are available on domain name registration or renewal. Domain renewal is provided as a courtesy and MSI is not responsible for a failure to renew a domain or a failure to notify a customer about a domain's renewal.
It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic checks, or any other payment method. MSI may report any such misuse or fraudulent use, as determined in MSI's sole discretion, to governmental and law enforcement authorities, credit reporting services, financial institutions and/or credit card companies.
H. Invoice Disputes.
You have ninety (30) days to dispute any charge or payment processed by MSI. If you have any questions concerning a charge on your account, please reach out to our billing department for assistance. If you initiate a chargeback, there may be a minimum charge of $25.00 plus applicable taxes to reactivate your account and we reserve the right to suspend your account for the duration of the dispute. Hosting accounts that have an open dispute may be disabled for security purposes.
I. Payment Card Industry Security Standard Disclaimer.
MSI and its payment systems comply with the Payment Card Industry Security Standard ("PCI Standard") in connection with the collection and processing of our customer's data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. MSI does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.
11. Money-Back Guarantee.
MSI offers a thirty (30) day money-back guarantee for hosting services only. Subject to the terms described in Section 13 below, if you are not completely satisfied with these hosting services and you terminate your account within thirty (30) days of your first hosting payment, you will be given a full refund of the amount paid for hosting.
This money-back guarantee only applies to fees paid for hosting services and does not apply to domains, website design, administrative fees, install fees, setup fees, SSL or to any fees for any other additional services.
12. Cancellations and Refunds.
A. Money-Back Guarantee.
If an account with a thirty (30) day money-back guarantee is purchased and then cancelled within the first thirty (30) days from the date of the first hosting payment (the "Money-Back Guarantee Period"), you will, upon your written request to MSI at firstname.lastname@example.org (the "Refund Request"), within ninety (90) days of such termination or cancellation ("Notice Period"), receive a full refund of all hosting fees previously paid by you to MSI for the initial term ("Money-Back Guarantee Refund"); provided that such Money-Back Guarantee Refund shall be due to you only upon your compliance with, and subject in all respects to the terms and conditions of, this Section 13. Requests for these refunds must be made in writing to MSI. Refunds will only be issued for hosting services and will not include domains, website design, administrative fees, install fees, setup fees, SSL or to any fees for any other additional services. Money-Back Guarantee Refunds will not accrue, and shall not be paid under any circumstances, if you do not provide the applicable Refund Request within the Notice Period.
B. Refund Eligibility.
Only first-time accounts are eligible for a refund. For example, if you've had an account with us before, canceled and signed up again, or if you have opened a second account with us, you will not be eligible for a refund. Violations of this Agreement will waive your rights under the refund policy.
C. Non-refundable Products and Services.
There are no refunds on other services including but not limited to domain names, website design, administrative fees, install fees, setup fees, SSL or to any fees for any other additional services.
D. Unused Services
MSI will not provide refunds for any purchased but unused Services. If you purchase hosting but fail to host a website, no refund will be provided unless it is refundable per the guidelines of the 30 day guarantee. If you purchase certain add-on services from MSI (for example SSL certificates) you may be required to apply the Service to a specific domain name to begin using the Service. MSI is not responsible if you fail to take the necessary steps to utilize a service.
E. Cancellation Process.
You may terminate or cancel the Services by giving MSI written notice via email at email@example.com. In such event: (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation and (ii) MSI may, in our sole discretion, refund all pre-paid fees for hosting services for the full months remaining after the effectiveness of such cancellation (i.e. no partial month fees shall be refunded) less any setup fees, applicable taxes and any discount applied for prepayment, provided that you are not in breach of this Agreement. Once we receive your cancellation request and have confirmed all necessary information with you via email, we will inform you in writing (typically email) that your account has been canceled. If you do not hear back from us, or do not receive a confirmation email 2 business days after submitting your cancellation request, please contact us immediately via phone at: 410-433-5943.
We require all cancellations to be via email in order to (a) confirm your identity, (b) confirm in writing that you are prepared for all of your files and emails to be removed, and (c) document the request. This process aims to reduce the likelihood of mistakes, fraudulent/malicious requests, and to ensure that you are aware that your files, emails, and account may be removed immediately and permanently after a cancellation request is processed. Cancellations for hosting accounts will be effective immediately.
The cancellation request is subject to verification of ownership of the account and/or domain, as determined in MSI’s sole discretion. After the account is canceled, all User Content will be permanently removed from the server. Please make a backup of all User Content before you contact MSI to cancel your account.
Domain renewals are due at the time of invoicing. It is your responsibility to notify MSI to cancel any domain registration at least thirty (30) days prior to the renewal date. No refunds will be given once a domain is renewed. All domain registrations and renewals are final.
G. Foreign Currencies.
Exchange rate fluctuations for international payments are constant and unavoidable. All refunds are processed in U.S. dollars and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and MSI is not responsible for any change in exchange rates between the time of payment and the time of refund.
MSI may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due; (ii) you violate this Agreement; (iii) your conduct may harm MSI or others or cause MSI or others to incur liability, as determined by MSI in our sole discretion; (iv) you are abusive toward MSI staff in any manner or (v) as otherwise specified in this Agreement. In such event, MSI shall not refund any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, MSI may charge you for all fees due for the Services for the remaining portion of the then current term.
UPON TERMINATION OF THE SERVICES FOR ANY REASON, USER CONTENT, USER WEBSITES, AND OTHER DATA WILL BE DELETED.
13. CPU, Bandwidth and Disk Usage
A. Permitted CPU and Disk Usage.
All use of hosting service has a maximum of 10 gigs of space provided by MSI and is subject to the terms of this Agreement and the Acceptable Use Policy.
Hosting space may only be used for web files, current and active email (not archived email) and content of User Websites. Hosting space may not be used for storage (whether of media, files, emails, or other data), including, as offsite storage of electronic files, email or FTP hosts. MSI expressly reserves the right to review every account for excessive usage of CPU, disk space and other resources that may be caused by a violation of this Agreement or the Acceptable Use Policy. MSI may, in our sole discretion, terminate access to the Services, apply additional fees, or remove or delete User Content for those accounts that are found to be in violation of these terms and conditions.
B. Bandwidth Usage.
Hosting service servers are limited in their bandwidth allowance. Unlimited bandwidth usage is not available for accounts and additional charges may be assessed for additional bandwidth usage.
14. Uptime Guarantee.
If your hosting server has a physical downtime that falls short of the 99.9% uptime guarantee, you may receive one (1) month of credit on your account. This uptime guarantee does not apply to planned maintenance. Approval of any credit is at the sole discretion of MSI and may be dependent upon the justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor's network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. To request a credit, please send an email to firstname.lastname@example.org with justification within thirty (30) days of the end of the month for which you are requesting a credit.
15. Technical Support Services.
A. MSI will provide technical support via email or phone for the Services (“Technical Support Services”). You will be required to provide as much information as possible to aid our investigation into any issues or problems. By utilizing MSI’s Technical Support Services, you grant MSI permission to access your account, if necessary, to resolve your issue. You agree that MSI and its agents and employees are not liable for any damage resulting from the provision of customer support.
B. Ineligibility for Technical Support Services. MSI will not provide Technical Support Services if: (a) you are in breach of this Agreement; (b) the need for Technical Support Services is due to (i) any modification or attempted modification of the Services by you or any third party outside of MSI’s control, or (ii) your failure or refusal to implement changes recommended by MSI; or (c) you are abusive toward our staff in any manner.
C. MSI will provide technical support for websites we design. If you have a website designer other than MSI and the technical issue is deemed to be a design issue then your designer, not MSI, is responsible for support. MSI reserves the right to charge for any support related to website design if MSI is not the website designer.
16. Client Responsibility
You are not permitted to resell MSI’s hosting services.
MSI reserves the right to reset the password on your account if the password on file is not current. It is your responsibility to ensure that there is a valid email address and current root password on file for your server to prevent downtime from forced password resets. MSI reserves the right to audit servers as needed and to perform administrative actions at any time.
17. Price Change
MSI reserves the right to change prices or any other charges at any time. We will provide you with at least thirty (30) days notice before charging you with any price change. It is your sole responsibility to periodically review billing information provided by MSI, including notices sent or posted by MSI.
18. Limitation of Liability
IN NO EVENT WILL MARKETING SYSTEMS, INC., ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF MARKETING SYSTEMS, INC. IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MARKETING SYSTEMS, INC.'S LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MARKETING SYSTEMS, INC. FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
You agree to indemnify, defend and hold harmless MSI, our affiliates, and their respective officers, directors, employees and agents (each an "Indemnified Party" and, collectively, the "Indemnified Parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the Indemnified Parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.
By using the Services, you hereby submit to the exclusive jurisdiction of the American Arbitration Association ("AAA") in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator chosen by MSI and will be held at the AAA location chosen by MSI. Payment of all filing, administrative and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, MSI will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on basis involving claims brought in a purported representative capacity on behalf of others. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The arbitrator's authority to resolve and make written awards is limited to claims between you and MSI alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate litigation or any other proceeding against MSI in violation of this paragraph, you agree to pay MSI's reasonable costs and attorneys' fees incurred in connection with our enforcement of this paragraph.
21. Independent Contractor
MSI and User are independent contractors and nothing contained in this Agreement places MSI and User in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
22. Governing Law; Jurisdiction
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon an alleged tort, shall be governed by the substantive laws of the State of Wyoming. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
MSI shall not be responsible for any damages your business may suffer. MSI makes no warranties of any kind, expressed or implied for the Services. MSI disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all service interruptions caused by MSI or our employees.
24. Backups and Data Loss
Your use of the Services is at your sole risk. MSI is not responsible for files and/or data residing on your account. You agree to take full responsibility for all files and data transferred and to maintain all appropriate backup of files and data stored on MSI's servers. Any backups made by MSI are as a courtesy only and may not contain the most up to date information from your hosting account.
25. Limited Warranty
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS." EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, MSI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. MSI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. MSI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
26. Disclosure to Law Enforcement
MSI may disclose User information to law enforcement agencies without further consent or notification to the User upon lawful request from such agencies. We cooperate fully with law enforcement agencies.
27. Entire Agreement.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
The headings herein are for convenience only and are not part of this Agreement.
29. Changes to the Agreement or the Services
MSI may modify, add, or delete portions of this Agreement at any time. If we have made significant changes to this Agreement, we will post a notice on the website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date of the last revision. Any revisions to this Agreement will become effective when posted unless otherwise provided. You agree to any modification to this Agreement by continuing to use the Services after the effective date of any such modification.
MSI reserves the right to modify, change, or discontinue any aspect of the Services at any time.
If any provision or portion of any provision of this Agreement is found to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.
No failure or delay by you or MSI to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of any right or remedy. No express waiver of, or assent to, any breach of or default in any term or condition of this Agreement by any party hereto shall constitute a waiver of, or an assent to, any succeeding breach of or default in the same or any other term or condition hereof.
32. Assignment; Successors
You may not assign or transfer this Agreement or any of your rights or obligations hereunder, without the prior written consent of MSI. Any attempted assignment in violation of this Agreement shall be null and void and of no force or effect whatsoever. MSI may assign our rights and obligations under this Agreement, and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
33. Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
34. Third-Party Beneficiaries
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights in any person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, user acknowledges and agrees that any supplier of a third-party product or service that is identified as a third-party beneficiary in the service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against user as if it were a party to this Agreement.
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