This Agreement ("Agreement") is between One Fold Media and the person or entity who signs, or accepts via electronic means, One Fold Media's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of One Fold Media's hosting service.
Subject to the terms of this Agreement, and contingent on Customer's compliance with One Fold Media's credit approval requirements, One Fold Media agrees to provide the hosting/dedicated or shared server services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that One Fold Media generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew on a month to month basis (each a "Renewal Term") unless One Fold Media or Customer provides the other with written (including electronic) notice of non-renewal. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
(a) Fees. Fees are due and payable in advance of the first day of each billing cycle. Customer's billing cycle shall be a calendar month or otherwise indicated on the Order. The first service fee shall include a prorated portion of the monthly fee for the first partial month of service plus the fee for the first full billing cycle. One Fold Media may require payment in full of the first service fee before beginning service. If the Order provides for credit/debit card billing, Customer authorizes One Fold Media to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise One Fold Media will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. If payment has not been received by the fifth day of the month for the current billing cycle, your servers may be suspended immediately. If payment has not been received within thirty (30) days of the due date, your data will not be maintained and may be removed. One Fold Media shall have no liability in connection with any such service suspension or data removal.
Payments must be made in United States dollars. Customer is responsible for providing One Fold Media with changes to billing information (such as credit card expiration, change in billing address). At its option, One Fold Media may accrue charges to be made to a credit/debit card until such charges exceed $10.00. One Fold Media may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum rate allowed by law. One Fold Media may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay One Fold Media's $75.00 reinstatement fee following a suspension of service for non-payment, and to pay One Fold Media's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. One Fold Media may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. One Fold Media shall have the right to invoice and collect from Customer all applicable sales, VAT or similar tax on all services provided to Customer. At One Fold Media's request Customer shall remit to One Fold Media all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on One Fold Media), regardless of whether One Fold Media fails to collect the tax at the time the related services are provided.
(d) Service Violation Fees. Customers which violate the Terms of Service or Acceptable Use Policy may be, at the sole discretion of One Fold Media, subject to an administrative fee of up to $30 per incident, in addition to all other rights and remedies of One Fold Media as allowed by law or provided in this Agreement. This fee shall be levied within 60 days of the actual violation.
(e) Additional Administrative Fees. Customers that have their assigned One Fold Media IP addresses placed on SPAM blacklists, or that cause other IP addresses within the One Fold Media network to become blacklisted, may be assessed a $50 per blacklisted IP administrative fee, in addition to all other rights and remedies of One Fold Media as allowed by law or provided in this Agreement.
Customer servers that are subjected to more than one IP null-route (resulting from network attacks) in any given month will be assessed an administrative fee per null-route. A null-route shall not be put in place unless the attack exceeds 500 Mbps or 50,000 packets per second in size or unless the attack negatively impacts the One Fold Media network.
Any abuse complaint received by One Fold Media in connection with services provided to or by Customer shall be administratively processed by One Fold Media and a copy (or notification thereof) provided to Customer for appropriate handling. Customer is expected to take all necessary action to resolve the abuse complaint within 24 hours of notification. At the sole discretion of One Fold Media, an administrative fee of up to $10 per complaint processed may be assessed.
(f) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event One Fold Media terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for One Fold Media's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Customer agrees to use the service in compliance with applicable law and One Fold Media's Acceptable Use Policy posted at the One Fold Media Website (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that One Fold Media may, in its reasonable judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of One Fold Media's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with One Fold Media's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between One Fold Media and Customer regarding the interpretation of the AUP, One Fold Media's commercially reasonable interpretation of the AUP shall govern.
Customer represents and warrants to One Fold Media that the information he, she or it has provided and will provide to One Fold Media for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to One Fold Media that he or she is at least 18 years of age. One Fold Media may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
Under no circumstances shall One Fold Media be held liable for damages resulting from any interruption in service, except as otherwise specifically provided herein. Customer acknowledges that it makes use of One Fold Media's services and facilities at its own risk. Customer agrees to indemnify and hold harmless One Fold Media, One Fold Media's affiliates, and each of their respective officers, directors, managers, members, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) arising out of or related to the actual or alleged use of One Fold Media's services, whether in violation of applicable law or the AUP by Customer or any person using Customer's log on information, or otherwise, regardless of whether such person has been authorized to use the services by Customer.
ONE FOLD MEDIA DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW ONE FOLD MEDIA DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS. IN THE EVENT OF A SERVICE INTERRUPTION, ONE FOLD MEDIA SHALL USE GOOD FAITH EFFORTS TO HAVE SERVICE RESTORED AS SOON AS POSSIBLE.
ONE FOLD MEDIA SHALL NOT BE LIABLE FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF ONE FOLD MEDIA HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ONE FOLD MEDIA AND ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER DURING THE PERIOD SERVICE WAS NOT PROVIDED AS REQUIRED BY THIS AGREEMENT, UP TO A MAXIMUM PERIOD THREE MONTHS OF SERVICE.
(a) Suspension/Termination of Service. Customer agrees that One Fold Media may suspend and/or terminate services to Customer without notice and without liability if: (i) One Fold Media reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) One Fold Media reasonably believes that the suspension of service is necessary to protect its network or its other customers; (iv) a chargeback, dispute, or reversal of payment is initiated on any payment made to One Fold Media; or (v) as requested by a law enforcement or regulatory agency. Customer shall pay One Fold Media's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
The Agreement may be terminated by One Fold Media prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) if Customer is overdue on the payment of any amount due under the Agreement; (ii) if Customer materially violates any other provision of the Agreement, including the AUP (in which case a $50 "Termination Fee" will be applied); (iii) if Customer violates Section 5 (Customer Information) of this Agreement.
(b) Termination by Customer. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if One Fold Media fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail.
(c) Refunds. If an account is terminated and the termination results in a credit balance, a refund will be issued. Refunds shall be processed on the first of each month; unless the first of the month falls on a weekend or a holiday, in which case refunds will be processed on the first subsequent business day. Refunds shall be made in full no later than 45 days after the account termination. One Fold Media may, at it's option, perform refunds prior to the first of the month.
Customer agrees that One Fold Media may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that One Fold Media believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Customer agrees to maintain a current copy of all content hosted by One Fold Media, and acknowledges that One Fold Media does not provide back up services. One Fold Media shall not be responsible in connection with any data loss, and Customer shall be solely responsible at all times for maintaining current and useable copies of its own data.
Upgrades and other changes in One Fold Media's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. One Fold Media reserves the right to change its network in its commercially reasonable discretion, and One Fold Media shall not be liable for any resulting harm to Customer.
Notices to One Fold Media under the Agreement shall be given via electronic mail to the e-mail address posted for customer support at the One Fold Media website. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change Cusstomer's notice address by a notice given in accordance with this Section.<4>14. Force Majeure.
One Fold Media shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond One Fold Media's control, including, without limitation, failure of a portion of the power grid utilized by One Fold Media, failure of Internet services utilized by One Fold Media, failure of contract services provided to One Fold Media, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type which is disruptive generally to industry and commerce.
The Agreement shall be governed by the laws of the State of Utah, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. THE EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN SALT LAKE COUNTY, UTAH, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. BY ENTERING INTO A SERVICE ORDER WITH ONE FOLD MEDIA, CUSTOMER AGREES TO THE PERSONAL JURISDICTION OF THE COURTS IN SALT LAKE COUNTY, UTAH.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed, or accepted via electronic means, by both parties. The terms on Customer's purchase order or other business forms are not binding on One Fold Media unless they are expressly incorporated into a formal written agreement signed, or accepted via electronic means, by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions, as set forth in this Agreement, will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without One Fold Media's prior written consent. One Fold Media's approval for assignment is contingent on the assignee meeting One Fold Media's credit approval criteria. One Fold Media may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.