Prime42, LLC Terms of Service
Use of Prime42’s services constitutes an acknowledgement and acceptance of these terms of service.
GENERAL TERMS OF SERVICE
ABUSIVE ACTIVITIES AND OTHER THREATS
You acknowledge and agree that your use of Services, including any content you submit, will comply with these Terms of Service, and all applicable local, state, national and international laws, rules and regulations.
You acknowledge and agree that you may not use our servers nor your website as a source, intermediary, reply to address, or destination address for activities that threaten the stability of our network or will damage the systems of, or cause a disruption of Internet services to, Prime42, our customers, or third-parties. You acknowledge and agree that all Services associated with your account may be removed if one Service is in violation of these Terms of Service. You further acknowledge and agree that Prime42 reserves the right to scan your account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed at Prime42’s sole discretion for security purposes. Prime42’s time spent cleaning your Service may be billed to your account at our current standard rate.
You shall be solely responsible for providing, updating, uploading and maintaining your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text.
You acknowledge and agree that:
- In the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your Service;
- You will not attempt to mislead any person as to the identity, source or origin of any communication;
- You will not interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization;
- You will not use your server as an “open relay” or for any purpose associated with sending unsolicited commercial email;
- You will not collect or harvest (or permit anyone else to collect or harvest) any User Content or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent;
- You will not use your Services in a manner (as determined by Prime42 in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
- Interferes with the operation of or causes a degradation in the performance of our server or network environment;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Prime42 or Prime42’s Services.
- You agree to back-up all of your User Content so that you can access and use it when needed. Prime42 does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content;
- You will not re-sell or provide the Services for a commercial purpose, including any of Prime42’s related technologies, without Prime42’s express prior written consent;
- You will not run a public recursive DNS service;
- Your website may not include any of the following content:
- image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic);
- banner ad services for display on other websites or devices (commercial banner ad rotation);
- file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare);
- commercial audio streaming (more than one or two streams);
- push button mail scripts that allow the user to specify recipient email addresses;
- anonymous or bulk SMS gateways;
- backups of content from another computer or website;
- Bittorrent trackers;
- any script that causes a degradation in the performance of our server or network environment.
- Prime42 expressly reserves the right to terminate, without notice to you, any and all Services where, in Prime42’s sole discretion, you are harassing or threatening Prime42 and/or any of Prime42’s employees.
- Prime42 expressly reserves the right to immediately deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Prime42 in its sole and absolute discretion), including but not limited to the following:
- we reasonably believe that the Services are being used in violation of these Terms of Service;
- you don’t cooperate with our reasonable investigation of any suspected violation of these Terms of Service;
- there is an attack on your Service or your Service is accessed or manipulated by a third party without your consent,
- we are required by law, or a regulatory or government body to suspend your Services, or
- there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Prime42 network or our other customers.
- If your Service is compromised, then you must address the vulnerability prior to Prime42 placing the Service back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
We do not tolerate the transmission of spam. We monitor all traffic to and from our servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse.
Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:
- Email Messages
- Newsgroup postings
- Windows system messages
- Pop-up messages (aka “adware” or “spyware” messages)
- Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
- Online chat room advertisements
- Guestbook or Website Forum postings
- Facsimile Solicitations
- Text/SMS Messages
We will not allow our servers and services to be used for the purposes described above. In order to use our products and services, you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If we determine the account, products, or services in question are being used in association with spam, we may re-direct, suspend, or cancel any account, web site hosting, domain registration, email boxes, or other applicable products or services. In such event, at our election, we may require you to respond by email to us stating that you will cease to send spam and/or have spam sent on your behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated.
You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Account.
MONITORING OF CONTENT
Prime42 generally does not pre-screen User Content. However, Prime42 reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with these Terms of Service. Prime42 may remove any item of User Content and/or terminate a User’s access to Services for posting or publishing any material in violation of these Terms of Service, or for otherwise violating these Terms of Service (as determined by Prime42 in its sole and absolute discretion), at any time and without prior notice. Prime42 may also terminate a User’s access to Services if Prime42 has reason to believe the User is a repeat offender. If Prime42 terminates your access to Services, Prime42 may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
STORAGE AND SECURITY
You shall be solely responsible for undertaking measures to:
- prevent any loss or damage to your website or server content;
- maintain independent archival and backup copies of your website or server content; and
- ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
STORAGE AND PLAN LIMITS
All Service plans have limits. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees. In the event the bandwidth, server load or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade your Service, or we may take action to restrict the resources your website is utilizing.
AVAILABILITY OF SERVICES
Subject to these Terms of Service and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time your Services may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of your Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
You are not entitled to a credit for downtime or outages resulting from Maintenance. For the purposes of our Terms of Service, Maintenance shall mean:
- Prime42 maintenance windows: modification or repairs to shared infrastructure, such as core routing or switching infrastructure that we have provided notice of at least 72 hours in advance, that occurs during off peak hours in the time zone where the data center is located;
- Scheduled customer maintenance: maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades;
- Emergency maintenance: critical unforeseen maintenance needed for the security or performance of your configuration or Prime42’s network.
We are constantly upgrading our infrastructure and in order for you to benefit from these upgrades, you agree that we may relocate your services, make changes to the provision of the Services, URLs and IP addresses and may establish new procedures for the use of the Services. We may also make changes to DNS records and zones on Prime42 operated or managed DNS servers as we deem necessary for the operation of the shared network infrastructure. In each case, we will use all reasonable measures to minimize the effect that such change will have on your use of the Services.
The IP addresses allocated to your Hosted System during the term of the Service are managed by Prime42 and Prime42 will retain these IP addresses after termination of the Service, meaning that they may not be transferred or utilized by you after termination of the Service.
DOMAIN NAME SERVICES
If you register, renew or transfer a domain name through Prime42, Prime42 will submit the request to its domain service provider (the “Registrar”) on your behalf. Prime42’s sole responsibility is to submit the request to the Registrar. Prime42 is not responsible for any errors, omissions or failures of the Registrar. Your use of domain service is subject to the applicable legal terms of the Registrar. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
Vulnerability testing services involve inherent risks, such as data corruption and impaired performance. If you ask Prime42 to provide vulnerability testing services, then you agree that Prime42 is not liable to you for any damages arising from the performance of the Services as agreed.
DISCONTINUED SERVICES, END OF LIFE POLICY
Prime42 reserves the right to cease offering or providing any of the Services at any time, for any or no reason, and without prior notice. Although Prime42 makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, that product or service will no longer be supported by Prime42, in any way, effective on the EOL date.
In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. Prime42 may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
Prime42 will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.
UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES
If you ask us to implement a configuration element (hardware or software) or hosting service in a manner that is not customary at Prime42, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term (referred to in this Section as an “Unsupported Service”). Prime42 makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Prime42 will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Deployment and Service Level Guaranties shall not apply to the Unsupported Service, or any other aspect of the Hosting Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Prime42’s other services, such as backup or monitoring.
Prime42 reserves the right, in its sole and absolute discretion, to perform maintenance, including removal of data, on our systems. This includes removal of redundant data, resizing of graphic images for proper storage and display as well as the compacting and cleaning of email storage.
TERMINATION OF SERVICES
You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses, email addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, we will delete all such content and we will not be able to provide a copy of such content.
You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
You are aware that Prime42 may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Prime42 asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Prime42 is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls or marketing text messages from or on behalf of Prime42 that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from Prime42. Message and data rates may apply.
Without limiting any of the rights set forth elsewhere in these Terms of Service, Prime42 expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User:
- whose Account or Services were previously terminated or suspended, whether due to breach of this or any Prime42 policy, or
- who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by Prime42 in its sole and absolute discretion).
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services. You must cooperate with Prime42’s reasonable investigation of Service outages, security problems, and any suspected breach of these Terms of Service. You are responsible for keeping your account permissions, billing, and other account information up to date using our Client portal or via another Prime42 defined process.
In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Prime42 makes no representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
SPECIFIC TERMS OF SERVICE FOR WEBSITE DEVELOPMENT & MARKETING
Prime42 shall perform website development / programming and / or website marketing services for a fixed price or on a time and materials basis as agreed to, in writing, by Client. Work in excess of the agreed upon amount shall be billed at Prime42’s standard hourly rates unless otherwise agreed to. During the course of the development of your website, we may purchase software, artwork and / or security certificates on your behalf. Some software requires annual renewals in order to continue functioning properly. Prime42 may choose to charge you for these fees in addition to your regular hosting fees.
It is expected that the work associated with these Terms of Service will be completed in a timely manner and as agreed. Prime42 is not responsible for delays in completion owing to Client delays in providing materials or actions outside their control.
Upon notification by Prime42 via email, telephone conversation or letter to the effect that any of the agreed upon work has been completed, Client agrees to review the work and to inform Prime42 of any corrections, alterations or modifications within five (5) business days of said notification. If Client does not respond, work shall be considered accepted as-is. Prime42 agrees to make whatever corrections, alterations, or modifications are necessary in order to conform to Client’s specifications as per the original work description or as mutually modified.
Client agrees to pay Prime42 for all contracted services on the agreed upon schedule. Upon completion of Services or on a progress basis, Prime42 shall invoice Client for work completed. Client agrees to pay for services within fifteen (15) days from receipt of invoice. If, at any time, the project lags in Client’s possession for thirty (30) days, Prime42 reserves the right to consider the project complete and invoice the balance due for the entire project.
Prime42 reserves the right to hire subcontractors to this project as it deems necessary to fulfill its obligations.
FINANCIAL TERMS & CONDITIONS
PAYMENT FOR INITIAL ORDER
You agree to pay all amounts due for Services at the time you order them (Service Commencement Date). Your first invoice may include an initial one-time set-up fee. We may require you to pay this initial invoice before beginning Services. All amounts are non-refundable unless otherwise noted in the Refund Policy.
RECURRING SERVICES BILLING DATE
Following the Service Commencement Date, the recurring fees billing date will be based on the date of the month you purchased the Services, unless that date falls after the 28th of the month, in which case your billing date may be the 28th of each month. All recurring Services are billed in advance of delivery of Service and are non-refundable. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears.
Invoices are due as stated on the invoice, typically within fifteen (15) days of invoice date. If you have arranged for payment by credit card or ACH, Prime42 shall charge your card or account on or after the invoice date. Prime42 may suspend all Services, if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four (4) Business Days of our written notice to your billing contact. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 45 days of invoice date are conclusively deemed accurate.
RIGHT TO BILL FOR ADDITIONAL OR EXCESSIVE USAGE
Prime42 expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
Other than as required by applicable law, Prime42 does not retain hard copies or electronic versions of mandate, standing order or standing instruction forms and/or any signed consents relating to your usage of our automatic renewal services, and we are therefore unable to provide any such document upon request. You may view or change your automatic renewal settings at any time by logging into your Prime42 account at https://portal.Prime42.net.
In order to ensure that you do not experience an interruption or loss of services, all services are offered on automatic renewal. Except for reasons described below in this section, automatic renewal automatically renews the applicable service upon expiration of the then current term for a renewal period equal in time to the most recent service period. For example, if your last service period is for one year, your renewal period will typically be for one year.
Unless you disable the automatic renewal option, Prime42 will automatically renew the applicable service when it comes up for renewal and will take payment from the payment method associated with the service(s) in your account or your designated backup payment method(s) on file with Prime42. In automatically renewing your services, Prime42 will first attempt to charge the payment method associated with the service(s) in your account. Renewals will be charged at Prime42’s then current rates, which you acknowledge and agree may be higher or lower than the rates for the original service period. In order to see the renewal settings applicable to you and your services, simply log into your account at https://portal.Prime42.net. If you do not wish for any service to automatically renew, you may elect to cancel renewal, in which case, your services will terminate upon expiration of the then current term, unless you manually renew your services prior to that date. In other words, should you elect to cancel your product and fail to manually renew your services before they expire, you may experience an interruption or loss of services, and Prime42 shall not be liable to you or any third party regarding the same.
If, for any reason, Prime42 is unable to charge your Payment Method for the full amount owed, or if Prime42 receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that Prime42 may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf. Prime42 also reserves the right to charge you reasonable “administrative” fees” for:
- tasks Prime42 may perform outside the normal scope of its Services,
- additional time and/or costs Prime42 may incur in providing its Services, and/or
- your noncompliance with these Terms of Service (as determined by Prime42 in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to:
- customer service issues that require additional personal time or attention;
- UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by Prime42 staff or by outside firms retained by Prime42;
- recouping any and all costs and fees, including the cost of Services, incurred by Prime42 as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with Prime42.
You agree that where refunds are issued to your Payment Method, Prime42’s issuance of a refund receipt is only confirmation that Prime42 has submitted your refund to the Payment Method charged at the time of the original sale, and that Prime42 has no control over when the refund will be applied towards your Payment Method’s available balance. You further acknowledge and agree that the payment provider and/or individual issuing bank associated with your Payment Method establish and regulate the time frames for posting your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer.
In the event a refund is issued to your Payment Method and the payment provider, payment processor or individual issuing bank associated with your Payment Method imposes any limitations on refunds, including but not limited to, limitations as to the timing of the refund or the number of refunds allowed, then Prime42, in its sole and absolute discretion, reserves the right to issue the refund in the form of an in-store credit. Prime42 also has the right to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the Payment Method.
Prime42 reserves the right to change its prices and fees at any time, and such changes shall be emailed to Client’s designated account contact prior to Client’s next billing cycle along with the effective date. If you have purchased or obtained Services for a period of months or years, changes in prices and fees shall be effective when the Services in question come up for renewal.
THIRD PARTY LICENSE FEES
In the event that a third party license provider increases the fee they charge Prime42 for your use of such license, we will increase your fees by the same amount. Prime42 will notify Client of price increase prior to their next billing cycle.
SUSPENSION AND TERMINATION OF SERVICES
Accounts that are 30 days past due will have their service suspended. Such suspension does not relieve you from your obligation to pay the service charge. Any account that has had its service suspended due to non-payment will remain on a suspended status for one (1) month. If payment is not made by the end of one month, the account will be terminated. Any accounts that are terminated will be deleted. Any data associated with Service (graphics, website files, email messages, etc) will be deleted and may not be recoverable.
You agree that if your Services are reinstated after a suspension for non-payment, you may be required to pay a reasonable reinstatement fee. Prime42 may charge interest on overdue amounts. If any amount is overdue by more than thirty (30) days and Prime42 brings a legal action to collect, or engages a collection agency, you must also pay Prime42’s costs of collection, including reasonable attorney fees and court costs.
COMPLIANCE AND LEGAL INFORMATION
You agree to protect, defend, indemnify and hold harmless Prime42 and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Prime42 directly or indirectly arising from:
- your use of and access to any Services provided by Prime42;
- your violation of any provision of these Terms of Service or the policies which are incorporated herein; and/or
- your violation of any third-party right, including without limitation any intellectual property or other proprietary right.
The indemnification obligations under this section shall survive any termination or expiration of these Terms of Service or your use of any Services provided by Prime42.
We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
COMPLIANCE WITH LOCAL LAWS
Prime42 makes no representation or warranty that the content available on any of our Services is appropriate in every country or jurisdiction, and access to those Services from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access Services hosted by Prime42 are responsible for compliance with all local laws, rules and regulations.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Prime42 is legally prohibited to provide the Services. You may not provide administrative access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.
TERMINATION FOR BREACH
You may terminate Services for breach if:
- we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure or
- we materially fail to meet any other obligations and do not remedy that failure within thirty (30) days of your written notice describing the failure.
We may terminate Services for breach if:
- we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
- the individual contracting for Services did not have the legal right or authority to do so on behalf of the person represented to be the customer;
- your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice;
- without notice if you have made payment arrangements via credit card or other third party, and the third party refuses to honor our charges, or
- you fail to comply with any other provision of the Terms of Service and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
Either of us may terminate the Service if the other party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of the United States or any state of the United States.
LIMITATION ON DAMAGES, LIABILITY AND WARRANTY
We are not liable to you for failing to provide Services unless such failure results from our gross negligence, willful misconduct, or intentional breach of these Terms of Service. Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.
Prime42 is not liable to you for lost data. Although we provide data backup services, we are not guaranteeing its accuracy nor availability at any given time.
Notwithstanding anything in the Terms of Service to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Prime42’s negligence, the maximum aggregate monetary liability of Prime42 and any of its employees, agents, suppliers, or affiliates in connection with the Services and any act or omission related to the Services, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed:
- for Services an amount that is twelve (12) times one month’s recurring fee for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and
- for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.
The Client agrees that its use of products provided through or in connection with Prime42, including without limitation Prime42 software licensed to the Client, the content, information, links or results obtained through the website or Client’s website or links thereon, are at the Client’s own risk. Prime42 is not responsible for third party software products, content, information, links, or Client’s website. The Client specifically acknowledges that Prime42 is not liable for the defamatory, libelous, offensive or illegal conduct of the Client within the content of the Client website and information, and that the risk of injury and/or damage from the foregoing rests entirely with the Client. Neither Prime42 nor any of its agents or affiliates shall be liable for any exemplary, special, indirect, incidental, consequential or punitive damages arising out of the use of the service or inability to gain access to or use the website or out of any breach of any warranty of Prime42, even if Prime42 has been advised of the possibility of such damages.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under these Terms of Service, as may be required by law, or as set forth below.
Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
- to each of our respective service providers, employees, Affiliates, suppliers, agents and representatives, provided that such service providers, employees, Affiliates, suppliers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated herein;
- to a law enforcement or government agency if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
- as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
USE OF PRIME42 MATERIALS
Prime42 reserves all rights including, but not limited to, copyrights, templates, code, patents, products, or other information (collectively, the “Work Product”) developed in whole or in part by Prime42 and it shall remain the exclusive property of Prime42.
All software, ideas, techniques, algorithms and methods or rights, whether considered to be Intellectual Property Rights or not, owned by Prime42 during Service period, and which are employed by Prime42 in connection with Services, shall be and remain the property of Prime42. Prime42 grants to the Client a non-exclusive, non-transferable, limited license to use Prime42’s Materials solely in conjunction with the Services as long as Client maintains Services with Prime42. Customers may not use website code developed by Prime42 on other Providers servers without express written permission by Prime42.
USE OF CLIENT CONTENT
Client hereby represents to Prime42 and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Prime42 for inclusion in project are owned by the Client, or that the Client has full permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Prime42 from any claim or suit arising from the use of such elements furnished by the Client. Client agrees and warrants that the website shall not contain any content that is subject to any copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary right of any third party (“Intellectual Property Rights”).
Any material provided by the Client or by third parties (other than Prime42) including, but not limited to, copyright, templates, patents, products, graphic design, photography, artwork, text or any other information used in the creation or modifications of client’s website shall remain the property of the Client.
The Client hereby grants to Prime42 a non-exclusive, transferable, license, subject to the termination or expiration of any Services between Prime42 and Client, to store and maintain the Client’s Content on Prime42’s database, storage of graphics and/or any other Content for the benefit of the Client. Prime42 may make such copies of the Content and website as may be reasonably necessary to perform its obligations between Prime42 and Client, or enforce the terms hereof, including making back-up copies of the Content.
ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES
Prime42 is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Prime42’s failure to meet its security obligations. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
Prime42 agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. You further agree that we may place an identifier and link in the footer, or elsewhere in the Site code, identifying Prime42 as your Service provider.
Neither of us will be in violation of these Terms of Service if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
CHOICE OF LAW AND ARBITRATION
All Prime42 Terms of Service shall be governed by and construed in accordance with the laws of the State of California. All disputes and claims relating to these Terms of Service shall be settled by arbitration in Prime42’s home state in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association.
CHANGES TO TERMS OF SERVICE
These Terms of Service supersede all previous representations, understandings, or agreements and shall prevail, not withstanding any variances with terms and conditions of any order submitted. Prime42 reserves the right to change its Terms of Service at any time. Prime42 reserves the right to change the price of any of its Services at any time. Continued use of Prime42 Services constitutes acceptance of these, and any future, Terms of Service.
If you have any questions about these Terms of Service, please contact us by email or regular mail at the following address:
1300 West Street
Redding, CA 96001