Terms of Service Agreement
|The following Agreement is by and between AccuNet, Inc. (hereinafter "AccuNet"), developer of SiteBuilder by AccuNet, Inc. (hereinafter “SBA”) of 2414 S. Hickory Ridge Rd, Milford, MI 48380 and Clients of AccuNet Custom Websites and SiteBuilder Website Creation Tool (“Client”).|
WHEREAS, AccuNet provides Website hosting and interactive Websites on the World Wide Web and provides Clients with access to its SBA to facilitate the creation and maintenance of websites for the sale of goods and display of information;
WHEREAS, Client seeks to utilize AccuNet’s Website Development and Hosting services for its own purposes;
WHEREAS, Client shall pay AccuNet either a monthly or yearly fee for hosting Client’s Website and/or leasing SBA;
NOW THEREFORE, the parties agree to the following Terms of Service as follows:
Warranties of AccuNet
AccuNet confirms and warrants that: AccuNet has the right to enter into this Agreement and to grant the rights granted in it. AccuNet shall, in good faith, comply with the terms of this Agreement.
Modifications of these Terms of Service
AccuNet, Inc. may modify these Terms of Service from time to time in its sole discretion, without prior notification. Each time Client logs on the SBA administrative login page will be deemed to have accepted any such changes. AccuNet will also post a note on the SBA Administrative Page stating that the Terms of Service have changed for SBA.
Assignment of Rights
AccuNet, Inc. may assign its rights and obligations under these Terms of Service and upon such assignment AccuNet, Inc. may be relieved of any further obligation hereunder.
Remedies & Failure to Enforce Any Provision
The failure of either party to seek relief for the other party’s breach of any duty under this Agreement, shall not waive any right of the non-breaching party’s to seek relief for any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired, and shall continue in full force and effect.
This Agreement and any attachments supersede any and all other agreements, either oral or in writing, between the parties with respect to the matters stated herein, and this agreement contains all of the covenants and agreements between the parties with respect thereto.
No Resale or Assignment of Service
Client agrees not to resell or assign or otherwise transfer its rights or obligations under this agreement without the express written authorization of AccuNet.
Any notices or communication under the agreement shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed. Receipt of communication is defined as the date the Email was sent or letter postmarked by the United States Postal Service. If to AccuNet, notices shall be addressed to sales[at]accunet[dot]us or 2414 S. Hickory Ridge Rd, Milford, MI 48380 USA. If to Client, such notices shall be address to the electronic or mailing address specified when Client opens an account with AccuNet.
1. Content of Email Messages and Website
Client alone is responsible for the content and potential consequences of Client’s Website and Email messages. AccuNet does not host adult sites nor allow uploading of adult content to Client Website. AccuNet reserves the right to terminate Client’s service if it becomes aware and determines, in its sole discretion, that Client is posting any message or material that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, profane, sexually oriented (unless within the scope of the topic area), racially offensive, inaccurate, or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation.
Client agrees not to impersonate any other person or entity, whether actual or fictitious, including impersonating an employee or consultant of AccuNet. Client further agrees not to use an inappropriate member name of any kind.
Client agrees not to post or use AccuNet to distribute or send any illegal material of any kind, including but not limited to, illegal material in the form of text, graphics, video, programs or audio utilizing their website or Email service hosted by AccuNet. Posting content or participating in any form of discussion with the intention to commit any illegal activity is strictly prohibited.
Client acknowledges that (a) AccuNet permits access to content that is protected by copyrights, trademarks and other intellectual and proprietary rights ("Rights"); (b) these Rights are valid and protected in all media and technologies existing now or later developed; and (c) except as explicitly provided otherwise, the Terms of Service and applicable copyright, trademark and other laws govern Client’s use of such content. Client may not post to any AccuNet or SBA website, copy, reproduce, retransmit, distribute, publish, commercially exploit or otherwise transfer any material subject to any Rights. The burden of determining that Rights do not protect any information, software, images or any other content on AccuNet/SBA rests with Client. Client acknowledges that AccuNet may acquire Rights to use any posted materials as described below, and that Client will not acquire any of those Rights by downloading such materials.
SPAM e-mail activities are not permitted on AccuNet websites. SPAM or SPAMing is defined as the unsolicited mass distribution of e-mail, or any unethical marketing practice. SPAM or SPAMing will lead to termination of Client Web Hosting account.
2. Subscription Username and Password
Client is responsible for maintaining the confidentiality of Client’s information and password. Client shall be responsible for all uses of Client’s registration, whether or not authorized by Client. Client agrees to immediately notify AccuNet of any unauthorized use of Client’s subscription or password by phone or Email.
3. Notification of Any Possible Copyright Infringement
In the event Client believes that material or content published on any AccuNet/SBA website may infringe on another's or Client’s copyright, a detailed message must be sent to AccuNet via the Contact Us Form located on the AccuNet website at www.accunet.us
4. Client’s Warranty of Ownership and Non-Infringement.
Client expressly confirms and warrants that Client is the owner of, or is duly authorized by the owner to use, any trademark or name requested or allocated as its Domain Name. Client further warrants that neither Client’s nor AccuNet’s use of Clients Domain Name constitutes infringement of any other entity’s Intellectual Property Rights. AccuNet shall not undertake to resolve any disputes or litigation on Client’s behalf involving Domain Name registration, and Client agrees that it shall indemnify, hold AccuNet harmless and defend AccuNet against any disputes involving Domain Name use or registration.
5. Hardware, Equipment, and Software.
The Client is responsible for and must provide and maintain all phone, computer, hardware and software equipment and services necessary to access their websites hosted and developed by AccuNet. AccuNet is not responsible for the repair or upgrade of any Client provided equipment in order to utilize SBA or AccuNet provided websites. AccuNet makes no representations or warranties or assurances that Client’s equipment will be compatible with the AccuNet’s SiteBuilder Service.
AccuNet recognizes that Client is the owner of all Intellectual Property Rights of its Website and Domain Name. AccuNet agrees that it shall not endeavor to create any derivate work from Client’s intellectual property nor shall entice nor knowingly allow any third party to do the same.
AccuNet hereby grants Client a non-exclusive, non-transferable license to use SBA on a server controlled by AccuNet for the sole purpose of creating and maintaining Websites on such server. Client is not being granted any right to copy the SBA or to use it on computers other than a server controlled by AccuNet. Client also acknowledges and agrees that the SBA is intended for access and use by means of web browsing software, and that AccuNet does not commit to support any particular browsing platform. AccuNet reserves the right at any time to revise and modify the SBA, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the SBA, without notice to Client. If any revision or modification to the SBA materially changes Client’s ability to conduct business, Client’s sole remedy is to cancel the agreement.
Site Owner Privacy
The parties recognize that each shall come into possession of information that comprises valuable trade secrets and other confidential information, which is exclusively owned by the conveying party. Both parties expressly recognize that Confidential Information is being conveyed to them under conditions of confidentiality, and agree that they shall not disclose Confidential Information to any third party during the term of this Agreement.
AccuNet, Inc. reserves the right to charge fees and surcharges at any time.
All new and existing accounts are setup and billed on a monthly or yearly anniversary basis. Timing to be determined before Client’s account is activated. Client will receive email confirmation from AccuNet at time of account setup on billing cycle and method of payment. Monthly fees must be paid with Visa or MasterCard. Annual fees must be paid with check or money order.
All payment is in U.S. currency.
In the event the credit card does not clear with the bank, the Client will be notified by e-mail. Past due accounts that are not brought current within 3 days of the e-mail notice date are subject to suspension and possible account termination.
Service fees to AccuNet do accrue during any period of suspension.
AccuNet will send all receipts and invoices for SBA by Email to the address specified by Client when account is opened
The Client is responsible for all money owed on the account from the time it was established to the time that the Client notifies AccuNet in writing for a request for termination of services. Receipt of notification is defined as the date of the Email sent or the postmark of the letter sent via standard postal service.
Checks returned unpaid due to non-sufficient funds will be accessed $50.00 service charge. AccuNet reserves the right to add a $50.00 reactivation fee for any past due account.
At no time will AccuNet allow a website to be operational past the last day of the pre-paid date of services. If Client fails to update their credit card account information, AccuNet will suspend the account until the new or corrected information is sent to AccuNet via Email, fax or standard postal service.
Check or money order orders may be approved by AccuNet on a per case basis for yearly prepayment.
AccuNet's SBA service fee is billed automatically on its monthly or yearly anniversary.
Cancellation and Refund Policies
A full refund excluding domain registration fees, add-on/upgrade fees, overages and set up fees, is provided within the first 30 days of Client account activation.
Client generated account cancellations must be submitted by the credit card holder in writing by standard mail, fax or Email to AccuNet. Account is considered terminated once all account information on cancellation request is verified to match all information on file. If credit card holder on file is not an employee of the Client, AccuNet will request confirmation of account cancellation from Client.
Account cancellations must be submitted at least three (3) business days before next date of automatic monthly service fee. Client will receive a partial refund of any complete unused months that were pre-paid. AccuNet does not refund partial monthly fees.
If Client cancels prior to the end of Client contract term and Client received special pre-pay rates, Client hosting fees will be adjusted so that the Client pays the regular, non-discounted monthly fees.
Refunds may take up to 30 days to be processed. Once credit is issued, normal circumstances allow 2 billing cycles for refund to show on Client credit card statement.
All Refunds are applied with the same terms they were processed. For Check/Money Orders, a company check will be sent to the mailing address AccuNet has in the billing system.
AccuNet reserves the right to terminate any and all services to Client for no cause and without any reason upon (15) days’ notice.
AccuNet reserves the right to cancel this agreement and terminate any and all services to Client immediately, and without prior notice, in the event that Client fails to fulfill any material obligation contained in this agreement. If cancellation is caused by Client’s violation of this agreement, then no refund will be disbursed.
Accounts canceled due to SPAM will be billed a clean-up fee of $500, paid by check or money order.
Maintenance & Support
AccuNet may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of Client’s contracted websites. However, AccuNet shall provide prior notice where it is reasonably practicable under the circumstances, and AccuNet shall restore service as soon as is reasonably practicable. Client shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond AccuNet’s control or which is reasonable in duration.
Client can obtain assistance with any technical difficulty that may arise in connection with Client’s utilization of the SBA by requesting assistance via the contact form or by phone (248) 684-8715, 9a-6p. AccuNet reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
The parties expressly recognize that it is impossible to maintain flawless security, but AccuNet shall take reasonable steps to prevent security breaches in AccuNet’s server. However, Client is solely responsible for it’s users and their passwords on any password-protected pages within it’s Website. Client is solely responsible for any damage caused by such unauthorized access, and Client indemnifies and holds AccuNet harmless for any compromise of Client’s security.
AccuNet’s servers are backed up daily for disaster recovery only. AccuNet can not restore client files due to accidental deletions outside of the control of the Client. Client is responsible for maintaining a backup copy of the content that is on their SBA Website.
Client confirms and warrants that Client is the sole provider of Client’s goods or services, that AccuNet is merely Client’s Internet communication medium, and that AccuNet is not Client’s selling agent, distributor, marketer or other affiliate. Client further confirms and warrants that Client shall not offer or sell any goods or services that are illegal in light of the purchaser's age, jurisdiction or other circumstance, that infringe any rights of others, or that are defective. Client hereby indemnifies AccuNet, holds it harmless, and agrees to defend AccuNet against any liability which may arise from Client’s provision of any goods or services through AccuNet's services.
Client agrees to indemnify and hold AccuNet, it’s officers, directors and employees, harmless from any claim or demand, including attorneys' fees, made by any third party due to or arising out of Client’s use of SBA/AccuNet Websites, for the violation of the stated Terms of Service; or the infringement by Client, or any other subscriber of Client’s account whether authorized or not, of any intellectual property or other right of any person or entity.
Client’s indemnification of AccuNet shall survive any termination of this Agreement.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to its conflicts of laws provisions. By registering for or entering websites sponsored by AccuNet, Client consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Michigan. By subscribing to or using any of the Services of AccuNet, Client agrees that all disputes, if any, involving AccuNet shall be subject exclusively to the jurisdiction of the State and Federal Courts within the State of Michigan; provided, further, that all action brought against AccuNet in State or Federal Court must be brought in Oakland County, Michigan.
Remedies for Breach of these Terms by Client
In the event that AccuNet, Inc. determines, in its sole discretion, that Client has breached any portion of these Terms of Service, AccuNet reserves the right to (a) warn Client via e-mail that Client has violated these Terms of Service; (b) delete any content provided by Client or its agent(s) to AccuNet; (c) delete all content provided by Client to AccuNet; (d) discontinue Client’s hosting service with AccuNet; (e) notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (f) any other action which AccuNet deems to be appropriate.
1. AccuNet shall not be liable for delays of defaults in furnishing goods or services hereunder, if such delays of defaults on the part of AccuNet are due to: Acts of God or of a public enemy; Acts of the United States or any state or political subdivision thereof; Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; Embargoes, epidemics or quarantine restrictions; Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; Delays of supplier or delay of transportation for any reason.
Causes beyond the control of AccuNet in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or material. Acceptance of delivery of goods or services shall constitute a waiver and release AccuNet by Client for any claim for damages, setoff, discount or other liability on account of delay.
2. AccuNet does not guarantee that any of its services including, but not limited to, Email, Website or online administration of any service, will be uninterrupted or error-free and will not be held liable for any claims resulting from the use or the inability to use AccuNet services including, but not limited to, service interruptions, Internet connectivity problems, unauthorized access to AccuNet servers, domain name registrar problems, DNS caching, Internet bandwidth congestion, power failures and natural disasters.
3. Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL ACCUNET BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM CLIENT OR CLIENTS' USE OF OR INABILITY TO ACCESS ANY PART OF THE INTERNET OR CLIENTS' RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, LOSS, THEFT, OR DELETION OR FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. If Client is dissatisfied with the service of these Terms and Conditions, Clients sole remedy is to terminate this Agreement. Notwithstanding anything to the contrary stated herein, AccuNet's maximum liability hereunder shall not exceed an amount equal to the total of the monthly recurring fees paid by Client hereunder in the preceding 6 months of service.
4. Third Party Transactions at Client’s Peril. The parties expressly recognize that AccuNet does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with AccuNet. AccuNet does not make any express or implied warranties, representations or endorsements to Client of any third party whatsoever with regard to any information, products, or services provided through AccuNet and obtained or contracted over the Internet, including, without limitation, warranties of: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) QUIET ENJOYMENT; AND 8) TITLE. AccuNet shall not be liable to Client of any third party for any cost or damage arising either directly or indirectly from any transaction involving third parties’ information, products, or services.
6. Downloading of Data or Files at Client’s Peril. The parties expressly recognize that while AccuNet does take steps to prevent contamination, it cannot and does not guarantee or warrant that files available for downloading through AccuNet will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client’s particular requirements for accuracy of data input and output, and for maintaining a means external to AccuNet for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client’s sole risk. Client further agrees that AccuNet is not liable in any way for any contaminated code or the actions of the Client utilizing Internet materials.
7. AccuNet IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WORLD WIDE WEB PAGES THAT IS CONTAINED OUTSIDE AccuNet's Website. As a convenience to our Clients, AccuNet may provide links to resources which are beyond it’s control. AccuNet makes no representations as to the quality, suitability, functionality or legality of any sites to which AccuNet may provide links, and Client hereby waives any claim Client might have against AccuNet, Inc. with respect to such sites.
Revision Date 4/28/2007