Sorry for the legalese, but the lawyers made us.
1. Introduction This User Agreement ("Agreement") is an Agreement between Bytescribe Inc. ("Bytescribe") a Georgia Corporation, and the party identified below ("Customer"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer. Such party is referred to in this Agreement as "Customer" or "you". Bytescribe reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Bytescribe. Activation of the Services shall indicate Bytescribe's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Bytescribe will provide to Customer the Services selected by Customer.
2. Duration of Agreement and Cancellation Policy. The Initial Term shall begin upon the date of receipt by Bytescribe of a signed Order Form, a signed copy of this Agreement, and payment in full for the Services stated on the Order Form ("Effective Date"). The Initial Term's length shall be indicated in the Order Form. After the Initial Term, this Agreement shall automatically renew for successive terms (each a "Renewal Term"), equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
This Agreement may be terminated by either party by giving the other party written notice at least 48 hours prior to the first calendar day of the month. This Agreement may be terminated by Bytescribe without notice in the event of nonpayment by the Customer or, if in Bytescribe's judgment the Customer has in any way breached this Agreement.
Either Party may cancel the Services for any reason within 30 days of the Effective Date and receive a full refund, minus setup fees, fees for additional services as well as fees paid for domain name registration, as posted at Bytescribe's web site. Even if Customer was not charged setup fees, those fees will be subtracted from the refund to reimburse Bytescribe reasonable expenses. Bytescribe will send, within 30 days of the cancellation of services and by US First Class mail, a check made out to the Customer for the amount of the refund to the address supplied below.
Either Party may cancel at any time, following the 30th day from the Effective Date but prior to the end of the agreed on Term. Customer will be charged for Services already rendered, up to and including the current calendar month, at the current Monthly rate as well as setup fees, fees for additional services and fees paid for domain name registration, as posted at Bytescribe's web site. Even if Customer was not charged setup fees, those fees will be subtracted from the refund to reimburse Bytescribe reasonable expenses. Bytescribe will send, within 30 days of the cancellation of services and by US First Class mail, a check made out to the Customer for the amount of the refund to the address supplied below.
Notwithstanding to the contrary anything herein, if Bytescribe cancels this Agreement for non-payment or for any breach of this Agreement, Bytescribe shall not refund to Customer any fees paid or prepaid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation.
3. Billing and Payment. All fees for Services are due in advance and shall be in accordance with Customer's Order Form. Automatically renewed services will use the fee schedule in effect at the date of renewal. In the event that Customer elects to pay with a credit card Customer authorizes Bytescribe to charge all fees owed to such credit card at the time or up to 30 days before they become due. Customer agrees to pay a $25.00 (twenty-five dollars) late fee if Customer's account or accounts become more than ten (10) calendar days overdue or if Customer's credit card is not accepted when a charge is processed. Bytescribe may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance or a lesser amount where required by law for each month or portion thereof the overdue amount remains unpaid. In the event that any amount due Bytescribe remains unpaid five (5) calendar days after such payment is due, Bytescribe, in its sole discretion, may immediately terminate this Agreement, and/or deny Customer access to the FTP site. Customer agrees that Bytescribe may charge a $30.00 (thirty dollars) fee to reinstate accounts that have been terminated or suspended. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Bytescribe) shall be paid by Customer. In the even that this Agreement is terminated by either party, while Customer has outstanding balance, Bytescribe reserves the right to deny Customer access to the FTP site and all data contained therein until Customer has paid in full; at which time Bytescribe will grant Customer access to data for 5 business days, allowing Customer to retrieve data, after which time Bytescribe will deny access to site and will destroy all data remaining on the site. Customer agrees that Bytescribe may charge in advance all fees due for the Services provided to Customer under this Agreement to the credit card supplied by Customer during registration or at any time thereafter and Customer specifically agrees not to charge back any payments Bytescribe processes through Customer's credit card. Customer acknowledges and specifically agrees that chargebacks - which might occur if Customer disputes Bytescribe charges directly with Customer's credit card bank - are unlawful if Bytescribe's service has been rendered. A fee dispute with Bytescribe must be settled with Bytescribe directly without initiating any chargeback procedures. Any chargeback will evoke a reasonable automatic service fee, without exception, for which Customer will be held responsible in future collecting procedures. Returned checks will be assessed a $30.00 charge. Incoming wire transfers will incur a $25 charge.
4. IP Address Ownership. During the course of providing Services to Customer Bytescribe may assign to Customer an Internet Protocol address. Customer agrees that it has no right to a particular IP address under this Agreement and accordingly Bytescribe shall retain ownership of any IP address or addresses used by Customer under this Agreement and that Bytescribe reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
5. No Unauthorized Scripts or Executables. Customer agrees not to run any scripts, executables or other programs or processes on Bytescribe's servers or other equipment that will in any way adversely affect the performance of said equipment. 6. Bandwidth and Disk Usage. Customer agrees that Bytescribe will monitor and meter Customer's bandwidth and disk usage and in the event that Customer exceeds the bandwidth or disk usage allocated to each Customer Bytescribe may take corrective action which may, at Bytescribe's sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. Customer agrees that in the event of a dispute Bytescribe's monitoring reports shall be the final method of determination how much disk space and bandwidth was used and agrees to pay the excess usage charges when due. Customer's logs files are counted against any disk usage. Log files cannot be deleted by Customer. All images in a Customer's hosting account must be linked to from pages within the Customer's hosting account. It is a violation of this Agreement if Customer uses this account as merely an image library. 7. Intellectual Property Rights. Customer acknowledges that Bytescribe owns all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the Services and their provision. Customer further acknowledges and agrees that nothing in this Agreement shall constitute a license to Customer to resell or trade under any of Bytescribe's intellectual property. 8. Security Customer agrees that the security of your account is solely Customer's own responsibility. Customer further agrees that if there is belief that the security of Customer's account has been compromised in any way, Customer will notify Bytescribe immediately in writing, by fax to 770-200-1513 or email to email@example.com. Customer shall be held fully responsible for any misuse or compromise to Customer's account occurring prior to notification of Bytescribe, in accordance with this Agreement. Customer agrees not to provide or share access to the account to any third party, and that Customer is responsible for any use of the account by any party to whom such access has been provided. Customer agrees that certain features of the account (e.g., additional FTP logins) which may be used to provide shared access to the account are not to be used to resell services to third parties, and that Customer is fully responsible for the actions of any party which utilizes those features. Customer agrees that if any security violations are believed to have occurred in association with the account, Bytescribe has the right to suspend access to the account pending an investigation and resolution. Customer also agrees that Bytescribe has the right to cooperate in any government or legal investigation regarding any aspect of our services, including services sold to the Customer. Any use of our system to engage in software piracy or other violations of law will result in account suspension and will be immediately reported to the appropriate authorities.
9. Disclaimer of Warranty. Customer agrees that its use of Services and its reliance upon information provided by Bytescribe are entirely at Customer's own risk. Customer acknowledges and agrees that Bytescribe exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through Bytescribe's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER Bytescribe, ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER Bytescribe NOR ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. Bytescribe IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY Bytescribe. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY Bytescribe EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY. The terms of this section shall survive any termination of this Agreement. 10. Indemnification. Customer agrees to indemnify, defend and hold harmless Bytescribe and its subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "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 the use or misuse of the Services by Customer, or for any violation by Customer of this Agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement, any breach of applicable law or regulating custom, or any negligence or willful misconduct of Customer. For the purposes of this paragraph, Customer shall mean the Customer, its affiliates, or their respective employees, agents or contractors. The terms of this section shall survive any termination of this Agreement. 11. Limitation of Liability. Customer agrees neither Bytescribe nor any of its employees, owners, or agents shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Bytescribe at the time) which may exist in the Services or Bytescribe's equipment used to provide the Services. Under no circumstances, including negligence, shall Bytescribe or any of its employees, owners, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Bytescribe has been advised of the possibility of such damages. No Bytescribe person shall be liable to Customer, any of its customers, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inabilityto use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, caused by any force majeure as defined in this Agreement, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Bytescribe's records, programs, equipment or services. Notwithstanding anything to the contrary in this Agreement, Bytescribe's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the twelve (12) month period prior to the date the cause of action arose or the injury or loss occurred. Customer understands, acknowledges and agrees that if Bytescribe takes any corrective action under this Agreement because of an action of Customer or one its customers that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Bytescribe shall have no liability to Customer, or any of its customers due to such corrective action by Bytescribe. This limitation of liability reflects an informed and voluntary allocation of risks between the parties and applies to risks both know and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement. 12. Prohibited Uses and Activities Bytescribe may immediately take corrective action, including removal of all or a portion of the Customer's content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer's account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this Agreement. Customer hereby agrees that Bytescribe shall have no liability to Customer or any of Customer's customers due to any corrective action that Bytescribe may take (including, without limitation, disconnection of Services). A. Violations of Intellectual Property Rights Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity's intellectual property rights including, rights of privacy and rights of publicity are prohibited. Bytescribe is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Copyright Infringement Notice Information" below). B. Spamming Customer agrees not to send spam or resell its services to anyone who sends spam. The term "spam" includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of of a dispute Bytescribe reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list. C. Viruses and Other Destructive Activities Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this Agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment). D. Malicious or Unauthorized Hacking Customer agrees not conduct or promote any "Hacking" activity and agrees that "Hacking" as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity on the part of Customer is a material breach of this Agreement. E. Child Pornography The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Bytescribe will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services. F. Other Illegal Activities The use of the Services to engage in any activities that are determined by Bytescribe, in its sole and absolute discretion, to be illegal or which in Bytescribe's opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws. Bytescribe will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services. G. Obscene, Defamatory, Abusive or Threatening Language Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited. H. Other Prohibited Activities Engaging in any activity that, in Bytescribe's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Bytescribe's business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Bytescribe's customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with Bytescribe in correcting or preventing violations of this Agreement by, or that result from the activity of, a customer of the Subscriber is a violation of this Agreement. 13. Disclosure of Customer Information and Legal Process Bytescribe may disclose any information in its possession, including, without limitation, information about Subscribers, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or official governmental request, to protect Bytescribe or others from harm, and/or to ensure the proper operation of the Services. Bytescribe has no obligation to notify any person, including the Subscriber about whom information is sought, that Bytescribe has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation. 14. Force Majeure. Bytescribe shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, terrorism, insurrection, sabotage, embargo, fire, flood, storms, inclement weather, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services ("Force Majeure"). 15. Governing Law; Jurisdiction; Arbitration. This Agreement shall be governed in all respects by Georgia law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in Georgia. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Atlanta, Georgia. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personal jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non- taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement. 16. Assignment. Customer shall not have the right to assign this Agreement by merger, other business combination, operation of law, or otherwise, without the prior written consent of Bytescribe. This Agreement shall be binding upon and inure to the benefit of Customer and Bytescribe and their successors and permitted assigns. 17. Entire Agreement; Severability. This Agreement, together with the Order Form and any other documents or Agreements identified in this Agreement, represents the entire Agreement between the parties, and supersedes all previous representations, understandings or Agreements. This Agreement can be amended in a writing signed by both Parties, or by the actions and practices of the Parties. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect. Any failure or delay by Bytescribe to enforce this Agreement shall not be construed as an ongoing waiver of any rights of Bytescribe. All waivers by Bytescribe must be in writing. Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.