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UltraOnline.Net
Terms & Conditions Agreement
· Term and Payment for Services
· Use of Services
· Enforcement
· Intellectual Property Rights
· Warranty; Warranty Disclaimer
· Limitation and Exclusion of Liability
· Indemnification
· Miscellaneous
UltraOnline.Net
Terms & Conditions Agreement
NOTWITHSTANDING,
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL
ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
UltraOnline.Net
reserves the right to change or modify any of the terms and conditions
contained in this Agreement, any Addendum and any policy or guideline
incorporated by reference at any time and from time to time in its sole
discretion, and to determine whether and when any such changes apply to both
existing or future customers. Any changes or modification will be effective
upon posting of the revisions on the UltraOnline.Net Web site (the
"Site"). Your continued use of Services following UltraOnline.Net
posting of any changes or modifications will constitute your acceptance of such
changes or modifications.
This
Agreement shall be for an "Initial Term" as chosen by you in the
Order Form located on this Site at the time you register for the Services. This
Agreement will be automatically renewed (the "Renewal Term") at the
end of the Initial Term for the same period as the Initial Term unless you
provide UltraOnline.Net with notice of termination thirty (30) days prior to
the end of the Initial Term or the Renewal Term.
If you
terminate your receipt of the Services prior to the end of the Initial Term or
the Renewal Term, whichever is then applicable, (a) UltraOnline.Net will not
refund to you any fees paid in advance of such termination and (b) you shall be
required to pay 100% of UltraOnline.Net's standard monthly charge for each
month remaining in the term, unless otherwise expressly provided in this
Agreement. Notwithstanding the foregoing, if you terminate your receipt of
Services prior to the end of the first thirty (30) days of the Initial Term,
you are entitled to a refund of the fees you paid in advance for the monthly
Services, not including any setup fees. Your termination request or notice must
be submitted to UltraOnline.Net in the manner described in Section 1.1.
UltraOnline.Net may terminate this Agreement at any time and for any reason by
providing to you written notice thirty (30) days prior to the date of
termination. If UltraOnline.Net terminates this Agreement, UltraOnline.Net will
refund to you the pro-rata portion of prepaid fees attributable to Services
(excluding setup fees) not yet rendered as of the termination date unless
otherwise expressly provided in this Agreement. If termination was enforced to due
violations that result in damages or fees assigned to UltraOnline.Net on your
behalf, no refunds shall apply and you will be held liable for such fees.
In the
event that either party hereto defaults in the performance of any of its
material duties or obligations under this Agreement, including failure to make
any payments due under this Agreement, and such default is not cured within
five (5) days after written notice is given to the defaulting party specifying
the default, then the party not in default, after given written notice thereof
to the defaulting party, may terminate this Agreement.
You agree
to pay for all charges attributable to your use of the Services at the then
current UltraOnline.Net prices, which shall be exclusive of any applicable
taxes. You are responsible for the payment of all federal, state, and local
sales, use, value added, excise, duty and any other taxes assessed with respect
to the Services, other than taxes based on UltraOnline.Net's net income.
All charges
for Services must be paid in advance according to the then current prices
applicable to the Services. Upon entering this Agreement, you must choose to
pay either by direct charge to a credit or debit card. If you choose to pay by
credit or debit card upon registering for the Services, you thereby authorize
UltraOnline.Net to charge your credit or debit card to pay for any charges that
may apply to your account. You must notify UltraOnline.Net of any changes to
your card account (including, without limitation, applicable account number or
cancellation or expiration of the account), your billing address, or any
information that may prohibit UltraOnline.Net from charging your account.
UltraOnline.Net may also create periodic invoices for any applicable
Supplemental Charges associated with your use of the Services. You agree to pay
to UltraOnline.Net the amount indicated in each invoice by the due date
reflected on that invoice. If you fail to pay any fees and taxes by the
applicable due date for credit card or invoice payments, late charges of the
lesser of one and one-half per cent (1.5%) per month or the maximum allowable
under applicable law but at no time less than $15 shall also become payable by
you to UltraOnline.Net . In addition, your failure to fully pay any fees and
taxes within five (5) days after the applicable due date will be deemed a
material breach of this Agreement, and UltraOnline.Net may, in addition to any
other remedy it may have: (i) suspend its performance of the Services and/or
terminate this Agreement; and/or (ii) At the time of such nonpayment,
UltraOnline.Net may, delete any and all content from the UltraOnline.Net
Servers. Any such suspension or termination of the Services would not relieve
you from paying past due fees plus interest.
If you ever
feel that UltraOnline.Net incorrectly charged your credit card you must contact
billing for a correction. If you do contact your credit card company and issue
a chargeback then you will be responsible for the $50 chargeback fee. If you do
not pay this fee then your account will be terminated.
The
UltraOnline.Net Acceptable Use Policy (the "Usage Policy") govern the
general policies and procedures for use of the Services. The Usage Policy is
posted on UltraOnline.Net's Web site (or such other location as UltraOnline.Net
may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ
THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF
THE USAGE POLICY AND ANY MODIFICATIONS. UltraOnline.Net RESERVES THE RIGHT TO
TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
Unless we
have agreed otherwise in a separate agreement, you must ensure that all
material and data placed on UltraOnline.Net's equipment is in a condition that
is "server-ready," which is in a form requiring no additional
manipulation by UltraOnline.Net . UltraOnline.Net will make no effort to validate
any of this information for content, correctness or usability. If your material
is not "server-ready", UltraOnline.Net has the option at any time to
reject this material. UltraOnline.Net will notify you of its refusal of the
material and afford you the opportunity to amend or modify the material to
satisfy the needs and/or requirements of UltraOnline.Net . Use of the Services
requires a certain level of knowledge in the use of Internet languages,
protocols and software. This level of knowledge varies depending on the
anticipated use and desired content of your Web site. You must have the
necessary knowledge to create and maintain a Web site. It is not
UltraOnline.Net 's responsibility to provide this knowledge or customer support
outside of the Services agreed to by you and UltraOnline.Net .
You agree
that use of the Services under this Agreement will not exceed the bandwidth and
storage usage limits set out. If you use any bandwidth or storage space in
excess of the agreed upon number of megabytes per month, you agree to pay the
associated additional charges. Data stored in your user account on a
UltraOnline.Net Server is not owned by UltraOnline.Net; therefore Data
preservation is the ultimate responsibility of you, the client. UltraOnline.Net
is in no way responsible for the client’s data and or the backup of that data.
UltraOnline.Net
may investigate any reported or suspected violation of this Agreement, its
policies or any complaints and take any action that it deems appropriate and
reasonable under the circumstance to protect its systems, facilities, customers
and/or third parties. UltraOnline.Net will not access or review the contents of
any e-mail or similar stored electronic communications except as required or
permitted by applicable law or legal process.
UltraOnline.Net
reserves the right and has absolute discretion to restrict or remove from its
servers any content that violates this Agreement or related policies or
guidelines, or is otherwise objectionable or potentially infringing on any
third party's rights or potentially in violation of any laws. If we become
aware of any possible violation by you of this Agreement, any related policies
or guidelines, third party rights or laws, UltraOnline.Net may immediately take
corrective action, including, but not limited to, (a) issuing warnings, (b)
suspending or terminating the Service, (c) restricting or prohibiting any and
all uses of content hosted on UltraOnline.Net 's systems, and/or (d) disabling
or removing any hypertext links to third party Web sites, any of your content
distributed or made available for distribution via the Services, or other
content not supplied by UltraOnline.Net which, in UltraOnline.Net 's sole
discretion, may violate or infringe any law or third-party rights or which
otherwise exposes or potentially exposes UltraOnline.Net to civil or criminal
liability or public ridicule. It is UltraOnline.Net 's policy to terminate
repeat infringers. UltraOnline.Net's right to take corrective action, however,
does not obligate us to monitor or exert editorial control over the information
made available for distribution via the Services. If UltraOnline.Net takes
corrective action due to such possible violation, UltraOnline.Net shall not be
obligated to refund to you any fees paid in advance of such corrective action.
To comply
with applicable laws and lawful governmental requests, to protect
UltraOnline.Net 's systems and customers, or to ensure the integrity and
operation of UltraOnline.Net 's business and systems, UltraOnline.Net may
access and disclose any information it considers necessary or appropriate,
including, without limitation, user profile information (i.e., name, e-mail
address, etc.), IP addressing and traffic information, usage history, and
content residing on UltraOnline.Net's servers and systems. UltraOnline.Net also
reserves the right to report any activity that it suspects violates any law or
regulation to appropriate law enforcement officials, regulators, or other
appropriate third parties.
4. INTELLECTUAL PROPERTY RIGHTS
You hereby
grant to UltraOnline.Net a non-exclusive, worldwide, and royalty-free license
for the Initial Term and any Renewal Term to use your content as necessary for
the purposes of rendering and operating the Services to you under this Agreement.
You expressly (a) grant to UltraOnline.Net a license to cache materials
distributed or made available for distribution via the Services, including
content supplied by third parties, and (b) agree that such caching is not an
infringement of any of your intellectual property rights or any third party's
intellectual property rights.
All
materials, including but not limited to any computer software (in object code
and source code form), data or information developed or provided by
UltraOnline.Net or its suppliers or agents pursuant to this Agreement, and any
know-how, methodologies, equipment, or processes used by UltraOnline.Net to
provide the Services to you, including, without limitation, all copyrights,
trademarks, patents, trade secrets and other proprietary rights are and will
remain the sole and exclusive property of UltraOnline.Net or its suppliers,
including but not limited to any software programs, inventions, products and/or
technology innovations and methodologies utilized, developed, or disclosed by
UltraOnline.Net during the term of this Agreement. Unauthorized copying,
reverse engineering, decompiling, and creating derivative works based on the
any such software is expressly forbidden except as permitted in this Agreement.
You may be held legally responsible for violation of any patent rights,
copyright or trade secret rights that is caused or encouraged by failure to
abide by the terms of this Agreement.
You hereby
grant to UltraOnline.Net a limited right to use your trademarks, if any, for
the limited purpose of permitting UltraOnline.Net to fulfill its duties under
this Agreement. This is not a trademark license and no other rights relating to
the trademarks are granted by this Agreement. Specifically, but without
limitation, the rights granted by this Agreement do not include the right to
sub-license use of your trademarks or to use your trademarks with any other
products or services outside the scope of the Services provided under this
Agreement. The limited trademark use rights granted under this section
terminate upon termination of this Agreement.
UltraOnline.Net
is not responsible in any manner for any non-confirming Services to the extent
caused by you or your customers. In addition, UltraOnline.Net is not
responsible for loss or corruption of data in transmission, or for failure to
send or receive data due to events beyond UltraOnline.Net's reasonable control.
ALL
SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY UltraOnline.Net UNDER THIS AGREEMENT
ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW,
WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT UltraOnline.Net EXERCISES NO CONTROL
OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING
THROUGH UltraOnline.Net's COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR
THE INTERNET. UltraOnline.Net DOES NOT WARRANT THAT THE OPERATION OF THE
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES
NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR
TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE
PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE
INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR
COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
UltraOnline.Net DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL
RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE,
REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY,
AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK
INFRINGEMENT.
You
warrant, represent, and covenant to UltraOnline.Net that (a) you are at least
eighteen (18) years of age or are a duly organized and validly existing entity;
(b) you possess the legal right and ability to enter into this Agreement; (c)
you will use the Services only for lawful purposes and in accordance with this
Agreement and all applicable policies and guidelines; (d) you will be
financially responsible for the use of your account; (e) you have acquired or
will acquire all authorization(s) necessary for hypertext links to third-party
Web sites or other content; (f) you have verified or will verify the accuracy
of materials distributed or made available for distribution via the Services,
including, without limitation, your content, descriptive claims, warranties,
guarantees, nature of business, and address where business is conducted, and
(g) your content and/or any software that you install or provide does not and
will not infringe or violate any right of any third party (including any
intellectual property rights) or violate any applicable law, regulation or
ordinance.
IN NO EVENT
SHALL ULTRAONLINE.NET HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED
ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO
ULTRAONLINE.NET , DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE
SERVICES. ULTRAONLINE.NET SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR
OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES EVEN IF ULTRAONLINE.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ANY EVENT, THE LIABILITY OF ULTRAONLINE.NET TO YOU FOR ANY REASON
AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO
ULTRAONLINE.NET BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS
IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT
LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET
BY ULTRAONLINE.NET UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED
UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE ULTRAONLINE.NET
FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE
LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,
IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
You hereby
acknowledge and agree that UltraOnline.Net will not be liable for any temporary
delay, outages or interruptions of the Services. Further, UltraOnline.Net shall
not be liable for any delay or failure to perform its obligations under this
Agreement, where such delay or failure results from any act of God or other cause
beyond its reasonable control (including, without limitation, any mechanical,
electronic, communications or third-party supplier failure).
You hereby
acknowledge and agree that UltraOnline.Net reserves the right to temporarily
suspend services for the purposes of maintaining, repairing, or upgrading its
systems and network. UltraOnline.Net will use best efforts to notify you of
pending maintenance however at no time is under any obligation to inform you of
such maintenance.
You will
defend, indemnify and hold harmless UltraOnline.Net and its officers,
directors, shareholders, employees, consultants, agents, affiliates and suppliers
(an "Indemnitee") from any and all threatened or actual claims,
demands, causes of action, suits, proceedings (formal or informal), losses,
damages, fines, penalties, liabilities, costs and expenses of any nature,
including attorneys' fees and court costs, sustained or incurred by or asserted
against any Indemnitee by any person, firm, corporation, governmental
authority, partnership or other entity by reason of or arising out of or
relating to: (i) your violation or breach of any term, condition, representation
or warranty of this Agreement or any applicable policy or guideline; (ii) your
conduct, including but not limited to your negligence, gross negligence, or
willful misconduct; (iii) your use of the Services, including any improper or
illegal uses; (iv) any claim by a former employee of yours whose employment has
been or may be terminated in connection with or as a result of the execution of
this Agreement and performance of the Services by UltraOnline.Net ; or (v) any
claim relating to your services or products, or your installation and/or use of
any third-party software, including but not limited to advertising, product
liability claims or infringement of any trademark, copyright, patent, trade
secrets or nonproprietary right of a third party (including, without
limitation, defamation, libel, or violation of privacy or publicity).
The parties
each agree that all Confidential Information (as defined below) communicated to
it by the other is done so in confidence and will be used only for the purposes
of this Agreement and will not be used to compete with the other party or
disclosed to any third party without the prior written consent of the other
party except as permitted under this Agreement. "Confidential Information"
means all information in any form, including, without limitation, printed or
verbal communications and information stored in printed, optical or
electromagnetic format, which relates to the Services; or computer, data
processing or electronic commerce programs and software; electronic data
processing applications, routines, subroutines, techniques or systems;
information which incorporates or is based upon proprietary information of
either party; or information concerning business or financial affairs, product
pricing, financial conditions or strategies, marketing, technical systems of
either party; or any information concerning customers or vendors of either
party; or any data exchange between a party and any customers or vendors.
Exceptions to Confidential Information include (1) information in the public
domain; (2) information developed independently by a party without reference to
information disclosed under this Agreement; or (3) information received from a
third party without restriction and/or breach of this or a similar Agreement.
It is not a violation of this provision to disclose Confidential Information in
compliance with any legal, accounting or regulatory requirement beyond the
control of either Party or, but in such case, prior to disclosure, the
disclosing Party shall give written notice to the other Party to permit that
Party an opportunity to challenge such disclosure. If either Party is
subpoenaed, such Party shall give written notice to the other Party to permit
that Party an opportunity to challenge the disclosure of Confidential
Information. Upon the termination of this Agreement and upon written request of
the disclosing Party, each Party shall promptly return all Confidential
Information of the other Party. This provision shall survive the termination of
this Agreement for two (2) years.
All
notices, reports, requests, or other communications given pursuant to this
Agreement shall be made in writing, shall be delivered by hand delivery,
overnight courier service, fax, or electronic mail, shall be deemed to have
been duly given when delivered.
THIS
AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF
MICHIGAN, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION
RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS
LOCATED IN MICHIGAN, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH
COURTS.
This
Agreement and all policies and guidelines incorporated in this Agreement by
reference constitutes the entire Agreement of the parties and may not be
modified or altered orally but only by an agreement in writing signed by both
parties.
No
Third-Party Beneficiaries UltraOnline.Net is not the agent, fiduciary, trustee
or other representative of you. Nothing expressed or mentioned in or implied
from this Agreement is intended or shall be construed to give to any person
other than the parties hereto any legal or equitable right, remedy or claim
under or in respect to this Agreement. This Agreement and all of the
representations, warranties, covenants, conditions and provisions hereof are
intended to be and are for the sole and exclusive benefit of the parties
hereto.
You may not
transfer or assign your rights, duties, or obligations under this Agreement
without UltraOnline.Net's prior written consent. UltraOnline.Net may assign its
rights and obligations under this Agreement and may utilize affiliate and/or
agents in performing its duties and exercising its rights under this Agreement,
without your consent. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of, and be enforceable against the parties and
their respective successors and assignees.
UltraOnline.Net's
failure to enforce the strict performance of any provision of this Agreement
will not constitute a waiver of UltraOnline.Net's right to subsequently enforce
such provision or any other provisions under this Agreement.
If any
provision of this Agreement is deemed illegal, invalid, void or otherwise
unenforceable in whole or in part, that provision shall be severed or shall be
enforced only to the extent legally permitted, and the remainder of the
provision and the Agreement shall remain in full force and effect. If any
provision of this Agreement is deemed to be invalid, void or unenforceable only
with respect to a particular application, such term or provision shall remain
in full force and effect with respect to all other applications.
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.