Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
“Acceptable Use Policy” means SiteB’s Acceptable Use Policy found at www.sitebdata.com/terms-of-service as of the date you sign or submit your Order.
“ACH” means Automated Clearing House.
“Business Day” means 9:00 a.m. – 7:00 p.m. Central Standard Time (CST), Monday through Friday, excluding federal public holidays in the United States .
“Cancellation Date” is defined based on the Cancellation Request, product line and contract term. Accordingly, for:
- (a) Managed Hosting Services – the Cancellation Date would be 14 days from the date the Cancellation Request was submitted to SiteB;
- (b) Dedicated Hosting Services – for month-to-month Agreements, the Cancellation Date would be one day after the Cancellation Request was submitted to SiteB;
- (c) Dedicated Hosting Services – for non-monthly Agreements, the Cancellation Date would be 14 days from the date the Cancellation Request was submitted to SiteB; and
- (c) Colocation and Network Services – the Cancellation Date would be 30 days from the date the Cancellation Request was submitted to SiteB.
“Cancellation Request” means a written based service cancellation request submitted via support ticket. To schedule your account for cancellation, please login to www.sitebata.com and submit a ticket. SiteB is not responsible for continued invoicing if the above method is not followed. The following sets the Cancellation Request requirements based on the product line and contract term:
- a) Monthly contracts relating to:
- (i) Managed Hosting Services – Cancellation Request should be submitted to SiteB at least 14 days in advance of the requested Cancellation Date;
- (ii) Dedicated Hosting Services – Cancellation Request should be submitted to SiteB at least 24 hours in advance of the Cancellation Date; and
- (iii) Colocation and Network Services – Cancellation Request should be submitted to SiteB at least 30 days in advance of the Cancellation Date.
- (b) Non-monthly contracts (quarterly, semi-annually, annually, 24 months, and other terms);
- (i) Managed Hosting Services – Cancellation Request should be submitted to SiteB at least 14 days in advance of the requested Cancellation Date;
- (ii) Dedicated Hosting Services – Cancellation Request should be submitted to SiteB at least 14 days in advance of the requested Cancellation Date; or
- (iii) Colocation and Network Services – Cancellation Request should be submitted to SiteB at least 30 days notice in advance to the Cancellation Date.
“Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, SiteB’s systems, (b) for SiteB, unpublished prices and other terms of service, audit and security reports, product development plans, datacenter designs (including without limitation non-graphic information you may observe on a tour of a datacenter), server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.
“EFT” means Electronic Fund Transfer.
“Order” means either: (a) the online order that you submit to SiteB via the SiteB Website, or (b) any other written order (either in electronic or paper form) provided to you by SiteB for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“SiteB” is defined conditionally as Site B Data Services, LLC.
“SiteB Website” means SiteB’s websites located at www.sitebdata.com .
“Services” means those SiteB products or services described in the Order.
“Service Level Agreement” means SiteB’s Service Level Agreement located at http://sitebdata.com/service-level-agreement as of the date you sign or submit the Order.
“Third Party Products” means third party software or products that SiteB may provide to you under this Agreement.
“Third Party Vendors” means certain reseller and other relationships that SiteB has established with certain commercial vendors.
2. Term, Termination, Refund and Retention
A. Term – This Agreement will be for the “Initial Term” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide SiteB the Cancellation Request as provided in this Agreement.
B. Termination – This Agreement may be terminated in one of the following ways:
C. Termination Liability – If you terminate this Agreement before the end of the Initial Term other than for SiteB’s material breach, then you will be required to pay:
(i) If you pay by credit card or ACH or EFT, then SiteB will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify SiteB of any changes to your account, your billing address, or any information that SiteB may reasonably require in order to process your payments in a timely manner.
E. Refund and Disputes – Except where expressly provided in this Agreement, all payments to SiteB are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to SiteB within 60 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.
F. Data Retention / Server Reclaim Policy – SiteB makes no guarantees about retaining any data stored on SiteB’s systems or servers following expiration or termination of this Agreement. SiteB will typically delete such data (a) seven days following termination of any SiteB Managed Hosting Services by either you or SiteB or (b) on your next billing date following termination of any SiteB Dedicated Hosting Services by either you or SiteB. You will not have access to your data stored on SiteB’s systems or servers during a suspension or following a termination.
3. Rights and Responsibilities
A. SiteB Responsibilities – For all Orders accepted by SiteB and subject to this Terms of Service, SiteB agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with SiteB’s Service Level Agreement.
B. Customer Responsibilities – You agree to do each of the following:
C. Acceptable Use Policy – By agreeing to the terms and conditions of this Agreement, you agree to SiteB’s Acceptable Use Policy, which is expressly incorporated herein by reference.
D. Intellectual Property Rights – You warrant, represent, and covenant to SiteB that:
D. IP Address – SiteB will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. SiteB may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.
E. Third Party Products – For your convenience, SiteB may provide you access to Third Party Products through certain Third Party Vendors. Neither SiteB nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and SiteB will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.
F. Additional Requirements for Using Microsoft Software – If Microsoft software is provided to you as part of the Services, then additional restrictions may apply, including but not limited to limits on the number of authenticated users of the Microsoft Windows Server Operating Systems under Microsoft Corporation’s licensing terms.
G. Security – SiteB is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify SiteB immediately, and SiteB will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
SiteB may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the SiteB Website. Your continued use of the Services following SiteB’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to SiteB within 30 days of the posting of any modifications of this Agreement by SiteB.
5. Limitations of Liability and Indemnity
A. Monitoring User Activity – Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. SiteB exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through SiteB’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will SiteB, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.
B. Interruption of Service – Except as set expressly provided in SiteB’s Service Level Agreement, SiteB will not be liable for any temporary delay, outages, or interruptions of the Services. Further, SiteB is not liable for any delay or failure to perform its obligations under this Agreement, where the 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). SiteB cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.
C. Warranty Disclaimer – EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY SITEB OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER SITEB, NOR IT’S AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. SITEB, ITS AFFILIATES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
D. Limitation of Liability – EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR SITEB’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, SITEB’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO SITEB UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY SITEB UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.
E. Customer Indemnity – You agree to indemnify, defend, and hold harmless SiteB and its affiliates and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by SiteB arising out of any breach of this Agreement by you, your Users, or your customers.
F. SiteB Indemnity – SiteB agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by SiteB infringe any third party’s intellectual property rights.
6. Applicable Law and Venue
This Agreement shall be construed and governed in accordance with the laws of the State of Texas. Any judicial or dispute resolution proceedings between the parties based on, arising out of, or related to this Agreement shall be conducted in Bexar County, Texas, and it is further agreed that all such parties stipulate and consent to the exercise of personal jurisdiction over them in any proceedings based on, arising out of, or related to this Agreement by state and federal courts located in Bexar County, Texas, and that venue of all such proceedings will properly and exclusively lie in such courts.
7. Miscellaneous Provisions
You and SiteB are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and SiteB. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of SiteB, and any attempted assignment or delegation without such consent will be void. SiteB and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.