Terms of Service
Brand-Forge.com (”We”, “Us” or “Our”) provides a platform for internet web hosting services to its subscribers (the “Subscribers” or “you” or “your”). Additionally, We may provide services involving registration, transfer or renewal of domain name among others. Your use of all of the services is governed by this Terms of Service (the “Terms of Service”) and our Acceptable Use Policy (”AUP”) found at http://www.brand-forge.com/faq/aup .
1. Services/Reselling Services. Subject to completion of the payment gateway process, we agree to provide the services you ordered (the “Services”).
2. Domain Name Services. If your Order Form provides for Us to register, renew or transfer a domain name (”Domain Name Services”), We will submit the request to a Registrar on your behalf. Our sole responsibility is to submit the request to the Registrar. We are not responsible for any errors, omissions or failures of the Registrar. You are responsible for closing any account with any prior reseller of Registrar for the requested domain name, and you are responsible for responding to any inquiries sent directly to you by the Registrar.
3. Term. The initial term of each of your Services shall begin on the date (the “Services Commencement Date”) that We generate an e-mail welcome message announcing the activation of the Service you ordered and shall continue for the number of months stated in the Order Form (the “Initial Term”) for each such Service. 30 days prior to the expiration of the Initial Term, you will receive a service renewal request from Brand-Forge.com. Failure to complete this renewal process will result in suspention of the services upon expiration of the initial term. 60 days after the expiration of the initial term, Brand-Forge.com reserve the right to permanently delet all data associated with your service. Renewal requests recieved after the expiration of the initial term but before the 60 days suspention term may be subject to additional account reactivation fees. The Initial Term and any Renewal Term may be referred to collectively herein as the “Term.”
4. Fees
(a) Annual Service Fee. The fee for the Services specified in your Order Form(s) is the “Annual Service Fee”. Your service has restrictions, explained on the order form, applied to server storage space, monthly bandwidth allowance, database numbers and size, and advanced customization support hours. Provided that you do not exceed these restrictions here will be no additional charges to you during the service term of one year.
(b) Non-Recurring Fees. If you ask Us to perform Domain Services, you will be charged a “Domain Registration Fee” as specified on the Order Form. If you require bandwidth or disk space or databases in excess of that provided in your Order Form, you agree to pay a fee (”Overage Fee”) for such excess amountswhich will be charged pro rata for the remaining time left on your initial service term. We may charge set-up fees (”Set Up Fee”) for certain of the Services; a fee for credit card charge backs (”Charge Back Fee”); and other non-recurring fees relating to the Services. Domain Registration Fees, Overage Fees, Set Up Fees, Charge Back Fees, Reinstatement Fee (as defined below) and all other non-recurring fees relating to the Services are collectively referred to as “Non-Recurring Fees”. You agree to pay Non-Recurring Fees when they are incurred.
(c) Fee Increases. Recurring Fees and Non-Recurring Fees are collectively referred to as the “Fees” or individually as “Fee”. We may increase any or all of the Fees by giving notice to you not less forty-five (45) days prior to the beginning of a Renewal Term applicable to the particular Fee which is subject to increase. Such Fee increase shall be effective on the first day of the applicable Renewal Term.
5. Payment of Fees. Payment of the Fees shall be made to Us by Google Checkout on the Brand-Forge.com website.
6. Taxes. You agree to pay to Us all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on Us), regardless of whether We fail to collect the tax at the time the Services are provided.
7. Law/AUP. You agree to use the Services in compliance with applicable law and Our AUP, which is incorporated by reference in the Terms of Service. You agree that We may, in our reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on your use of the Services. Amendments to the AUP are effective on the earlier of Our notice to you that an amendment has been made, or the first day of the next Renewal Term. You agree to cooperate with Our reasonable investigation of any suspected violation of the AUP. In the event of a dispute between the parties regarding interpretation of the AUP, our commercially reasonable interpretation of the AUP shall prevail.
8. Your Information. You represent and warrant to Us that (i) all information you provide for purposes of establishing and maintaining the Services is accurate; (ii) if you are an individual, you are at least eighteen years of age; (iii) you will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles in any country listed in Country Groups D:4 and D:3 of Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (iv) you will not provide access to the Services to any person (including a natural person or government or private entity) located in or a national of any embargoed or highly restricted country under United States Export Regulations, which include as of September, 2005, Cuba, Iran, Libya, North Korea, Sudan or Syria. You agree that We may, without notice and without liability to you report to the appropriate governmental authorities any conduct by you that We reasonably believe violates applicable law, and provide any information that We have about you in response to a formal or informal request from a law enforcement or government agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
9. Indemnification. You agree to indemnify and hold Us harmless, as well as Our affiliates, and each of the respective officers, directors, agents, partners, shareholders and employees of Us and of our affiliates from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements (”Claims”) of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the Services, including without limitation Claims related to Web space content that violates any copyright, trademark or service mark; any proprietary right of any person or entity; and any state and/or federal laws or regulations, including US Export Regulations.
10. Disclaimer of Warranties.
WE MAKE ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. WE SPECIFICALLY DO NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW WE DISCLAIM ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
11. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR 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 TERMS OF SERVICE, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OF SERVICE, OUR MAXIMUM AGGREGATE LIABILITY, AND THAT OF OUR AFFILIATES, AND EACH OF THE RESPECTIVE OFFICERS, DIRECTORS, AGENTS, PARTNERS, SHAREHOLDERS AND EMPLOYEES OF US AND OF OUR AFFILIATES, UNDER ANY THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICES FOR THE THREE MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.
12. Suspension/Termination.
(a) Suspension of Services. You agree that We may suspend the Services if: (i) We reasonably believe that the Services are being used in violation of the AUP; (ii) you fail to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) We reasonably believe that suspension of the Services is necessary to protect Our network or other customers, (iv) as required by a law enforcement or government agency. You agree to pay a reasonable fee for reinstatement (”Reinstatement Fee”) following any suspension.
(b) Termination by You. The Terms of Service may be terminated by you at any time. You are entitled to a refund of any fees you have paid to us calculated on a pro rata basis for the remaining time on your initial term. Refund explude fees paid by us on your behalf to third parties that do not offer a refund policy. Neither does it include a reasonable fee for account termination administration.
(c) Termination by Us. The Terms of Service may be terminated by Us prior to the expiration of the Initial Term or any Renewal Term without liability as follows: (i) if you are overdue on the payment of any Fee; (ii) you materially violate any provision of the Terms of Service or the AUP, and fail to cure the violation within ten (10) days after receipt of a written notice from Us describing the violation in reasonable detail in our sole discretion; (iii) upon twenty-four (24) hours notice if the Services are used in violation of a material term of the AUP more than once, or (iv) upon twenty-four (24) hours notice if you violate Section 8 (Your Information).
13. Intellectual Property Use and Ownership. Neither party shall (i) use the other party’s name, trademarks, trade names or logos in either its own legal name or in any fictitious or assumed name without the party’s consent; (ii) knowingly remove or alter any logo, trademark, trade name, copyright, or other proprietary notice, legend, or symbol from any of the other party’s products or documentation; or (iii) take any action, or intentionally omit to take any action that would jeopardize, limit, or interfere in any manner with the ownership of the other party’s products, services, documentation, or intellectual property. Title to and ownership of all copies of any products, services, software, documentation, or Internet services developed by or for Us during the Term, whether in machine-readable or printed form, and including without limitation any derivative works, compilations, or collective works thereof, and all related technical know-how, and all rights therein (including without limitation rights in patents, copyrights and trade secrets applicable thereto), are and shall remain Our exclusive property and that of Our suppliers. You shall not take any action to jeopardize, limit, or interfere in any manner with the ownership and rights therein.
14. Confidential Information. Each party agrees not to disclose or use, and to assure that their employees and agents do not disclose or use any confidential information (”Confidential Information”) of the other party. Our Confidential Information is Our unpublished prices for the Services, audit and security reports, server configuration designs, software interfaces and other proprietary technology. Your Confidential Information is content transmitted to or from, or stored by you on servers provided as part of the Services and not placed by you in a publicly accessible area. Confidential Information is also information of a party that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and is confirmed as confidential in a written notice given within one (1) day of disclosure. Confidential Information does not include (i) any information which is independently developed by a non-disclosing party as shown by such party’s written business records, (ii) is or becomes generally available to the non-disclosing party or the public other than through violation of this Section, or (iii) is required to be disclosed by law or regulation. The parties acknowledge that Confidential Information is valuable, special and unique; that its unauthorized disclosure or use will cause irreparable injury to its owner, that immediate injunctive and/or other equitable relief will be necessary and appropriate to remedy an unauthorized disclosure or use of Confidential Information, and that such relief may include without limitation a temporary restraining order obtained ex parte as well as permanent injunctive relief. Upon termination of the Terms of Service, each party agrees to return within a reasonable period of time any and all Confidential Information and other materials belonging to the other party upon request. This Section 14 will survive the termination of the Terms of Service for a period of two (2) years.
15. Back Up Copy. Whilst Brand-Forge.com do maintain daily backups of hosted data for the previous 48 hours, you are strongly advised to maintain your own copy of all of your current content hosted by Us.
16. Notices. Notices to Us shall be given by means of electronic mail to the e-mail address posted for customer support on http://www.brand-forge.com/faq/aup. Notices to you shall be given via electronic mail to the individual designated as the Primary Contact. 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 transmitted.
17. Force Majeure. We shall not be in default under the Terms of Service if the failure to perform is due to any event beyond Our control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, failure of network providers, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
18. Governing Law/Venue. The Terms of Service shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The United Nations Convention on the International Sale of Goods shall have no application to the Terms of Service. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE SHALL BE THE STATE AND FEDERAL COURTS IN BEXAR COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
21. Miscellaneous. 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. Neither party has the power or authority to bind the other in any agreement and will not represent to any person that it has such power or authority. The Terms of Service may be amended from time to time by Us, in Our discretion. Amendments to the Terms of Service are effective on the earlier of Our notice to you that an amendment has been made, or the first day of the next Renewal Term. Terms of Service as amended are posted at http://www.brand-forge.com/faq/aup. The terms on any purchase order or other business forms issued by you are not binding on Us. A party’s failure or delay in enforcing any provision of the Terms of Service will not be deemed a waiver of that party’s rights with respect to that provision or any other provision. A party’s waiver of any of its rights under the Terms of Service is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether or not similar in nature. Captions in the Terms of Services are for the convenience of the parties and are not intended for interpretation. The following provisions will survive expiration or termination of the Terms of Service: 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. There are no third party beneficiaries to the Terms of Service. You may not transfer the Terms of Service without our prior written consent. Our approval for any assignment is contingent on the assignee meeting our credit approval criteria. We may assign all or any part of the Terms of Service.
This Terms of Service together with the Order Form and AUP (i) constitute a legal and binding agreement between you and Us; (ii) are the complete and exclusive agreement between the parties regarding the subject matter; (iii) supersede and replace any prior understanding or communication, whether written or oral, and (iv) do not benefit any other person or entity.
