Important Legal Agreements
This Terms of Service (the "Agreement") is a legally binding contract between Midstate Web Services LLC, a New York Limited Liability Company, hereinafter referred to as "Company", and you, hereinafter referred to as "Customer", that shall govern the purchase and use, in any manner, of services provided by the Company to the Customer (collectively, the "Services"). The parties agree as follows:
By accepting this Agreement and using Company's Services, Customer agrees to be bound by all the terms and conditions of this Agreement in the same manner as if they had physically signed the Agreement.
Provision of Services
Company agrees to provide Customer with website hosting services, consisting of website server space, e-mail capability, domain name registration, software licenses, and such additional services, as may be provided by Company from time to time. Company reserves the right to change or modify the features of Customer's service plan from time to time on 30 days e-mailed notice to Customer. Customer's continued use of Company's services after receipt of such a notice of modification shall constitute Customer's acceptance of and agreement to be bound by the Company's modification of the terms and conditions of this Agreement.
Term of Agreement
The Agreement becomes effective immediately upon submission of an order by the Customer and shall continue for one (1) calendar month (the "Initial Term"). After the initial term, this Agreement shall be automatically renewed for successive monthly periods until terminated by one of the parties as provided in this Agreement.
Customer agrees to pay Company monthly for the Services until this Agreement is cancelled by either party as set forth in this Agreement. Company reserves the right to change or modify its charges for Customer's plan from time to time on 30 days notice e-mailed to Customer. Customer's continued use of Company's services after receipt of such a notice shall constitute Customer's acceptance of and agreement to be bound by the Company's modified charges for its services. Additional charges for add-on services not included in Customer's plan will be made as mutually agreed upon or as specified on the Company's website.
Service charges are payable in advance on a monthly basis. Company will invoice Customer at the beginning of each payment period. Company will submit all invoices to Customer by e-mail. Payment is due no later than the specified due date. Failure to pay invoices by the specified due date is cause for suspension or termination of services.
Customer agrees to pay a late fee of 5% if any invoice is not paid by the due date. Customer agrees to pay collection costs in the amount of $35.00 if their invoice is sent to an outside collections agency.
Customer agrees to be billed for all recurring and one-time charges, including late charges, for any Services ordered by Customer and any fees owed to Company.
If any check, bank transfer, electronic funds transfer, or eCheck is returned or refused by the Customer's bank for any reason, the Customer agrees to pay a "Returned Item Fee" of $20.00 for each such return or refusal. Returned or refused payments are cause for suspension or termination of services.
Customer agrees to notify Company in writing of any billing disputes. If any payment Customer makes to Company is the subject of a chargeback, retrieval, reversal, or other dispute, Customer agrees to pay a "Chargeback Fee" of $35.00 for each such chargeback, retrieval, reversal, or other dispute. Chargebacks, retrievals, reversals, or other disputes are cause for suspension or termination of services.
Company offers a thirty (30) day money back guarantee on all services or software products. Domain name registration, transfer, and renewal fees are non-refundable. Virtual private servers and dedicated servers are non-refundable. If Customer received a free domain name registration or transfer with their service, the retail cost of the registration or transfer will be deducted from any refund. To be eligible for a refund, the Customer must properly cancel their account prior to the expiration of the first thirty (30) days. If Customer purchases a service or software product and receives a refund, Customer would not be entitled to a refund of subsequent purchases of the same service or software product in the future.
After the initial thirty (30) days of service: Software licenses, SSL certificates, website builders, website backup services, website security services, email filtering services, and website SEO tools are non-refundable irrespective of prepaid service or use.
After the initial thirty (30) days of service: Prepaid web hosting services may be refunded for unused months of service at Company's discretion. Partial months of service will not be refunded. The amount of any incentive discount provided by Company for prepaid billing terms will be deducted from the refund. Company's calculation of the eligible refund amount is final.
Company may refuse to issue a refund if Services are terminated for cause as provided in this Agreement or if Company believes at its discretion that the Refund Policy is being abused. Refunds will be issued only to the original payment method.
Termination of Services
Customer may terminate this Agreement at any time, for any reason, by completing the cancellation form located in the Client Area under "My Service". In the event of a cancellation, Company will not refund amounts already billed for the current monthly service period in which Customer terminates the Agreement except as provided in the Refund Policy. Any amounts paid in advance by Customer for future service terms following the current monthly service term will be promptly refunded by Company.
Company may terminate this Agreement at any time, for any reason, by providing e-mail notice of termination to Customer's primary website e-mail contact address no less than 30 days prior to the service termination.
Customer agrees to abide by the terms of this Agreement and by Company's general use policies as set forth in this Agreement, as those policies may exist from time to time. Any violation by Customer of the terms of this Agreement or of Company's general use policies shall be grounds for immediate termination of Customer's account for cause. If Company terminates Customer's account for a violation of this Agreement, Company shall not be required to refund any amounts billed for the billing period in which Company terminates Customer's services.
If either Party terminates this Agreement, Customer understands that all data will be permanently removed from Company's servers. Customer is responsible for backing up their website content, databases, emails, and other data.
Company shall not be liable for any taxes and other governmental fees related to purchases made by Customer or from Company's server. Customer shall be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Customer by Company.
Materials and Products
Any material and data Customer provides to Company in connection with Services shall be in a form requiring no additional manipulation on the part of Company. Company shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Company, in its sole discretion, may reject material or data that Customer has placed on Company's servers or that Customer has requested that Company put on Company' servers. Company agrees to notify Customer immediately of its refusal of any material or data and provide Customer with an opportunity to amend or modify the material or data to meet the Company's requirements. Customer's failure to amend or modify the data or material as directed by Company within a reasonable time shall be a breach of this Agreement.
Electronic Mail Abuse
Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Customer may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Customer must not send that person any further e-mail. Customers are explicitly prohibited from sending unsolicited bulk e-mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Customers may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to "mail bombing" (flooding a user or site with very large or numerous pieces of e-mail) and "trolling" (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person's permission is prohibited. Company's accounts or services may not be used to collect replies to messages sent from another Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement will result in immediate account termination and provider reserves the right to charge an administrative clean-up fee of up to $500.00 and a deactivation fee of $100.00.
Violations of Network Security
Customer is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Customer's agreement. Company will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in such violations. These violations include, without limitation:
- Accessing data not intended for the Customer or logging into a server or account that the Customer is not authorized to access.
- Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
- Attempting to interfere with service to any Customer, host or network, including, without limitation, via means of overloading, "flooding," "mail bombing," or "crashing".
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- Taking any action in order to obtain services to which the Customer is not entitled.
Acceptable Use Policy
Customer is prohibited from engaging in the following content, links or actions in connection with any Services:
- Child Pornography - Hosting, Distributing, or Linking to Pornography Involving a Person Under Legal Age
- Copyright Infringement - Hosting, Distributing, or Linking to Copyright Infringed Materials
- CPU/Memory/Resource Abuse - Consuming Excessive Amount of Server Resources Causing Server Performance Issues
- DoS Source - Source of Denial of Service Attack
- DoS Target - Target of Denial of Service Attack
- Forgery - Faking an IP Address, Hostname, E-Mail Address, or Header
- Fraud Site - Hosting or Linking to a Website Intended to Deceive the Public
- HYIP - Hosting or Linking to a High Yield Investment Program Website
- Identity Theft - Hosting, Distributing, or Linking to Stolen Account Identification Information
- Infection - Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms
- IRC - Hosting Internet Relay Chat Server not Authorized by Company
- Mass Storage - Storing Mass Amounts of Backups, Archives, Videos, etc
- Phishing - Identity Theft by Email Under False Pretense
- Proxy Site - Hosting of an Anonymous Proxy Server
- Spam Blacklist - Spam Causing Blacklisting of an IP at any Email Reputation Service for Malicious Activity
- Spam Email - Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE)
- Spam List - Hosting, Distributing, or Linking to Email Address Lists for Spam
- Spam Site - A Site Advertised by Spam Email or Spam Web
- Spam Ware - Hosting, Distributing, or Linking to Software Designed for Spamming
- Spam Web - Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, or Guestbooks
- Terrorist Site - Hosting or Linking to a Site Advocating Terrorism
- Toolz - Hosting, Distributing, or Linking to Tools or Instructional Material on Hacking/Cracking or Other Illegal Activity
- Trademark - Hosting, Distributing, or Linking to Trade Mark Infringed Materials
- Warez - Hosting, Distributing, or Linking to Crackz, Hackz, KeyGenz, Serialz, or Pirated Software
- Any other application or data that the Company finds offensive
Customer shall at all times be professional and courteous toward staff members of Company. If Customer uses foul language, threatens us, or does anything that we may find offensive, such actions shall constitute material breach of this Agreement and shall be cause for suspension or termination of Services without notice.
Warranty Against Unlawful Use
Customer warrants and represents that Customer shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Customer's account for cause.
Liability; No Warranty; Limitation of Damages
Customer expressly agrees that use of Services provided by Company is at Customer's sole risk.
Company guarantees 100% percent uptime for its Web servers excluding scheduled maintenance. If uptime for Customer's Web server falls below 100% percent during any given month (or specify other payment period), Company will credit Customer one-thirtieth (1/30) of Customer's monthly service fee per one (1) hour downtime up to a maximum amount equal to one month of Customer's monthly service fee. Any such credit shall be applied to future invoices. This credit shall be Customer's sole and exclusive compensation for any downtime or other unavailability of Company's services under this Agreement. Company shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability.
Company, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.
Customer shall be responsible for ensuring that all Customer data including, but not limited to, website files, emails, and databases, are regularly backed up to a secure location outside Company's network. If Customer has purchased Website Backup Services from Company, Customer shall regularly inspect the backups on the said service for integrity. Company shall not be responsible for making backups of Customer's data.
Company, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Company's records, programs, or services.
Company will exercise no control over the content of the information passing through Company's network except those controls expressly provided herein.
Company makes no warranties or representations of any kind, express or implied, for the services it is providing. Company also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Customer, including loss of data resulting from delays or non-deliveries.
Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights
Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Customer. Customer agrees that all right, title, and interest in any product or service provided to Customer belongs to Company. These products and services are only for Customer's use in connection with Services provided to Customer as outlined in this Agreement.
Customer expressly warrants to the Company that Customer has the right to use any patented, copyrighted, or trademarked material which Customer uses, posts, or otherwise transfers to Company servers.
Customer agrees to abide by the Terms, Conditions, and Licenses of any third-party products, services, or software purchased or used in connection with the Services herein.
Customer agrees to abide by the Terms, Conditions, and Licenses of any third-party products, services, or software purchased or used in connection with the Services herein.
Hardware, Equipment, and Software
Customer is responsible for and must provide all phones, phone services, Internet services, computers, software, hardware, and other services necessary to access Company servers. Company makes no representations, warranties, or assurances that Customer's equipment will be compatible with Company Services.
End User License Agreement
Customer agrees that any software product owned or developed by Company, hereinafter referred to as the "Software", is supplied by Company, and is licensed, not sold, under the terms of Company's End User License Agreement, hereinafter referred to as the "EULA", and that the EULA will govern all use of the Software by Customer. Customer shall have no right to use the Software without agreeing to the terms of the EULA in full.
Customer is not permitted to "borrow", "lend", "sell" or in any other way transfer licenses or use of the Software to any third parties without express written consent of Company. Any breach by Customer of this term of the Agreement shall cause all use by Customer of the Software to be revoked and terminated immediately and without Company incurring any liability.
The EULA Agreement is included in the Software download package. By installing, copying, or otherwise using the Software, you agree to be bound by the terms of the EULA.
Customer expressly represents and warrants that Customer and any person to whom Customer grants access to Customer's account are at least 18 years of age.
Customer agrees to defend, indemnify, and hold Company harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fees, asserted against Company, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Customer, Customer's agents, employees, or assigns. Customer further agrees to defend, indemnify, and hold harmless Company against liabilities arising out of:
Any liability to Company arising by virtue of any use of Company's services by Customer for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Customer;
Any material supplied by Customer infringing or allegedly infringing on the property or proprietary rights of a third party;
Copyright or trademark infringement by Customer, or violation by Customer of intellectual property rights of any other party; and
Any defective product which Customer sold or distributed by means of Services.
Customer agrees that the liability limit of Company shall in no event be greater than the aggregate dollar amount which Customer paid during the terms of this Agreement, including any reasonable attorneys' fees and court costs.
If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Customer agrees to keep Company informed of all current contact information for Customer's account. Changes in Customer's account information may be reported to Company on Company's client area located at https://www.midstateweb.com/clientarea.php. Failure to maintain or keep current all contact information shall be a ground for Company to terminate Customer's account for cause.
Waiver of Jury Trial and Class Action
Customer and Company waive trial by jury. Any litigation or arbitration under this Agreement will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. CUSTOMER AND COMPANY AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both Customer and Company agree otherwise, the courts or arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
This Agreement has been entered into in the State of New York, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state. Exclusive venue for all disputes arising out of or relating to this agreement shall be the city, county, state and federal courts in Oneida County, New York, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
No waiver by Company of any breach by Customer of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.
This Agreement shall constitute the entire agreement between Customer and Company, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Changes To This Agreement
This Agreement may be changed, updated, or modified by Company from time-to-time on thirty (30) days e-mailed notice to Customer of such changes. Customer's continued use of Services after such e-mail notice being provided, whether or not received by Customer, shall constitute Customer's agreement to said changes, updates, modifications to this Agreement.
This Agreement was last modified: May 28, 2020