TERMS OF SERVICE
These terms of service (TOS) are entered into between First Due Web Services (First Due Web Services, we, us, or our) and the entity purchasing or using services provided by or through First Due Web Services (Customer, you, or your). We agree to be bound by this TOS when we process your payment information. You agree to be bound by this TOS when you submit the contact information set out below. This TOS contains provisions that you are required to apply to your customers (End Users). It is your responsibility to ensure that these provisions are included in contracts and other agreements with your End Users. You are responsible for your End Users under this TOS.
1.
Services we provide to you.
The features and details of the Services governed by this TOS are described on
the schedule set out on our web site for the category of Services you selected
("Services Page"). Throughout this TOS, the aspects of the category
of Services provided to you by First Due Web Services, as set out on the
Services Page, are referred to together as the "Service."
First Due Web Services provides the Service to you based on the description of
it on the Services Page as of the Effective Date. Should the Services Page
change subsequent to the Effective Date, First Due Web Services has no
obligation to modify the Service to reflect such a change.
2.
Contact Information
You are required to
provide us with accurate information when setting up your account, during the
course of our relationship, and when corresponding with us. On occasion, we may
need to communicate with you by e-mail about the Service. You agree to maintain
a working e-mail address that is monitored daily. We have no responsibility, or
liability, for interruptions in the Service, or damages of any sort, based on
communications that are misdirected as a result of your failure to provide us
with updated contact information.
3.
Term
The "Effective
Date" of this TOS will be the day on which you initially provide the
contact information set out above.
This TOS will begin on the Effective Date and continue for the term set out on
the Services Page (Initial Term). After the expiration of the Initial Term,
this TOS will renew for successive periods of equal length (Renewal Term). If
the Services Page does not contain an Initial Term, the Initial Term shall be
one year.
4.
Payment
You are responsible for the fees and charges set out on the Services Page (Fees).
You may be billed 7 days prior to the date set out on the Services Page (Due
Date).
Our obligation to provide the Service is contingent on your payment of the Fees
by the Due Date. You must pay the Fees without set off or deduction. It is your
responsibility to ensure that we receive payment of the Fees. Should the
Service be suspended, for any reason, Fees will continue to accrue. Set up and
domain name registration charges are not refundable for any reason.
If the Fees are not paid by your financial institution on the Due Date, your
account will be considered delinquent. To reinstate your account, you will be
required to pay, depending on the reason for the delinquency: (i) a returned
check fee in the amount of $50; (ii) interest in the amount of 2.0% per month,
or the maximum amount allowed by law; (iii) collection charges; and/or (iv) any
fees levied on us by our financial institution.
5.
Bill disputes
If you believe
there is an error on your bill you must contact us in writing. We each agree to
work together in good faith to resolve any billing disputes. Your dispute must
include sufficient facts for us to investigate your claims and be received by
us at least 5 days prior to the Due Date (Dispute Deadline). You waive your
right to dispute any charges or Fees if you fail to meet Dispute Deadline. If
we find that your claim is valid, we agree to credit the account that is the
subject of the dispute on your next bill.
6. Termination
6.1.
Money Back Guarantee.
The Service carries
an unconditional 30 day satisfaction guarantee (Guarantee). To cancel the
qualifying Service and receive a refund, contact us within the first 30 days of
the Effective Date for the particular Service. If you wish to retain your
domain name, the cost of your domain name will be deducted from your refund at
our regular, non-discounted, domain name price. If you paid us by credit card
we will credit the card on file, otherwise we will send you a check.
The Guarantee only applies to an individual Service for 30 calendar days
following the Effective Date. If you purchase more than one Service from us,
the Guarantee only applies to the Service that falls within this 30 day period.
6.2.
Termination for convenience
Either party may
terminate the Service by providing written notice to the other no later than 10
days before the expiration of the Initial Term or Renewal Term for that
particular Service.
6.3.
Termination for material breach
One party may
terminate this TOS upon the occurrence of a material breach, if this breach has
not been cured by the other party within 30 days of their receipt of written
notice of the breach. A material breach shall be determined from the
perspective of a reasonable business person with significant experience
conducting business on the Internet. Notices of material breach must contain
sufficient detail for the party against whom the assertion of material breach
is directed to identify the breach and attempt to take corrective action
6.4.
Termination for your violation of our policies
We reserve the right to immediately suspend the Service and/or terminate this
TOS: (i) for a violation of any of our policies, including those incorporated
by reference; and/or (ii) your failure to pay any amounts due. This right of
termination is without prejudice to any other rights we may have. You are not
entitled to any type of notice or protest should we exercise these rights, nor
will you receive a refund of any Fees.
7.
Use of the Services
Your use of the
Services must be reasonable. You may not place excessive burdens on our CPUs,
servers or other resources. You agree that we may place restrictions on your
use of the Service, and charge you excess bandwidth fees, to the extent that
they exceed the use of the Service of similarly situated customers. You
understand that bandwidth, connection speeds and other similar indices of
capacity are maximum numbers. Consistently reaching these capacity numbers may
result our need to place restrictions on your use of the Service.
You agree to cooperate with us to facilitate your use of the Service. This
cooperation includes, but is not limited to, providing us with correct contact
and billing information, designing material that is "server ready"
and ensuring that you, your employees and/or agents have sufficient technical
expertise to understand how to implement the Service.
Upon termination or expiration, your account will be closed. We have no
responsibility to forward e-mail, or other communications, for you once your
account is closed. You are encouraged to keep the Service active during a
transition period should you seek to forward your e-mail or other
communications.
8. Licenses and Intellectual Property
8.1. License from First Due Web Services to you
First Due Web
Services grants to you a non-exclusive, non-transferable, worldwide, royalty
free license to use technology provided by First Due Web Services solely to
access and use the Service. This license terminates on the expiration or
termination of this TOS. Except for the license rights set out above, this
license does not grant any additional rights to you. All right, title and
interest in First Due Web Services' technology shall remain with First Due Web
Services or First Due Web Services' licensors. You are not permitted to circumvent
any devices designed to protect First Due Web Services', or its licensor's,
ownership interests in the technology provided to you. In addition, you may not
reverse engineer this technology.
Any license provided to you, is provided with "RESTRICTED RIGHTS"
applicable to private and public licensees. These rights include, but are not
limited to, restrictions on use, duplication, or disclosure by the United
States Government as set forth in this TOS and as provided in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer
Software Restricted Rights at 48 CFR 52.227-19, as applicable.
8.2.
Licenses from you to First Due Web Services
We may use
information you provide to us for technical support, implementation, operation
or administration of the Service (Operational Information). Operational
Information, as well as aggregate information gleaned from the operation of our
business in general, will be used to improve, or create new products and
services. We shall be the exclusive owners of the resulting intellectual
property. You waive any rights you may have in this intellectual property, and
assign all right, title and interest in it to us and agree to cooperate with us
to secure our rights.
You grant First Due Web Services, and any third parties used by First Due Web
Services to provide the Service, a non-exclusive, non-transferable, worldwide,
royalty free license to use, disseminate, transmit and cache content,
technology and information provided by you and, if applicable, End Users, in
conjunction with the Service. This license terminates on the expiration or
termination of this TOS. All right, title and interest in your technology shall
remain with you, your End Users, or your licensors.
9. Representations and Warranties
9.1.
Reciprocal
We each warrant to the other that: (i) we have the power, authority and legal
right to enter into this TOS; and (ii) we have the power, authority and legal
right to perform our obligations under this TOS and all incorporated
provisions.
9.2.
Your Representations and Warranty
You represent and
warrant to First Due Web Services that: (i) you have the experience and
knowledge necessary to use the Service; (ii) you understand and appreciate the
risks inherent to you, your business and your person, that come from accessing
the Internet; (iii) you will provide us with material that may be implemented
by us to provide the Service without extra effort on our part; (iv) you have
sufficient knowledge about administering, designing and operating the functions
facilitated by the Service to take advantage of the Service; (v) that you
understand that you may not be able to access location based services, such as
"911" emergency calls, using the Service; (vi) that in entering into
this TOS, and performing the obligations set out in it, you will not violate
any applicable laws and regulations; (vii) that you will make back up copies of
your data even if you purchase "back up" services from First Due Web
Services; and/or (viii) that you will pass through the terms of our Acceptable
Use Policy to End Users.
You expressly warrant that you own the entire right, title and interest to, or
have an appropriate license to use, all materials provided to First Due Web
Services, or which may be accessed or transmitted using the Service. You also
warrant that to the extent you do business with other parties using the
Service, that they have the same ownership interests in the materials provided
to you, or accessed via you, that are set out in this paragraph.
10.
Disclaimers
THE SERVICE IS
PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN
PARAGRAPH 10.1, FIRST DUE WEB SERVICES HAS NOT, AND DOES NOT, MAKE ANY
WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT
LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. FIRST DUE WEB SERVICES DOES
NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE
FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FIRST DUE WEB SERVICES IS NOT LIABLE,
AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED
EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE
PROVIDED BY US. FIRST DUE WEB SERVICES SPECIFICALLY DISCLAIMS ANY AND ALL
WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER
THOSE SERVICES APPEAR TO BE PROVIDED BY FIRST DUE WEB SERVICES. NO WARRANTIES
MADE BY THESE THIRD PARTY ENTITIES TO FIRST DUE WEB SERVICES SHALL BE PASSED
THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH
WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE
RECEIVED FROM FIRST DUE WEB SERVICES, ITS EMPLOYEES, THIRD-PARTY VENDORS,
AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW FIRST DUE WEB SERVICES TO EXCLUDE CERTAIN WARRANTIES.
IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE
DATE FOR AN INDIVIDUAL SERVICE.
11.
Limitation of Liability
You agree that First Due Web Services has no liability, whatsoever, for (i) content
that you or an End User access from the Internet; (ii) for unauthorized access
to, or any corruption, erasure, theft, destruction, alteration or inadvertent
disclosure of, data, information or content, transmitted, received, or stored
on our system; and/or (iii) for your inability to access the publicly switched
telephone network.
IN NO EVENT WILL FIRECOMPANIES' LIABILITY HEREUNDER EXCEED THE AGGREGAGE FEES
ACTUALLY RECEIVED BY FIRST DUE WEB SERVICES FROM YOU FOR THE 3 MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES
OF THIS PARAGRAPH ONLY, THE TERM FIRST DUE WEB SERVICES SHALL BE INTERPRETED TO
INCLUDE FIRST DUE WEB SERVICES'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS,
OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH FIRST
DUE WEB SERVICES.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT
UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD FIRST
DUE WEB SERVICES OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD
PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY
LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE
FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY
OTHER LEGAL THEORY AND APPLY EVEN IF FIRST DUE WEB SERVICES HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE
THAT IN THOSE JURISDICTIONS FIRST DUE WEB SERVICES'S LIABILITY WILL BE LIMITED
TO THE EXTENT PERMITTED BY LAW.
12.
Indemnification
You agree to indemnify, defend and hold harmless First Due Web Services and its
parent, subsidiary and affiliated companies, third party service providers and
each of their respective officers, directors, employees, shareholders and
agents (each an "indemnified party" and, collectively,
"indemnified parties") from and against any and all claims, damages,
losses, liabilities, suits, actions, demands, proceedings (whether legal or
administrative), and expenses (including, but not limited to, reasonable
attorney's fees) threatened, asserted, or filed by a third party against any of
the indemnified parties arising out of or relating to (i) your use of the
Service; (ii) any violation by you of any of First Due Web Services' policies;
(iii) any breach of any of your representations, warranties or covenants
contained in this TOS; and/or (iv) any acts or omissions by you. The terms of
this section shall survive any termination of this Agreement. For the purpose
of this paragraph only, the term "you" as set out in subparagraphs
(i) through (iv) include you, End User, visitors to your website, and users of
your products or services, the use of which is facilitated by us.
First Due Web Services shall indemnify and hold you harmless from, and at its
own expense agrees to defend, or at its option to settle, any claim, suit or
proceeding brought or threatened against you so far as it is based on a claim
that the Service infringes any issued U.S. patent. This indemnification
provision is expressly limited to the Service which is fully owned by First Due
Web Services.com. It does not extend to products or services provided by third
parties even if incorporated into the Service. If set out in its agreements
with third-party suppliers, First Due Web Services shall flow down similar
intellectual property indemnification provisions to you. This paragraph will be
conditioned on your notifying First Due Web Services promptly in writing of the
claim and giving First Due Web Services full authority, information, and
assistance for the defense and settlement of that claim. You shall have the
right to participate in the defense of the claim at your expense. If such claim
has occurred, or in First Due Web Services's opinion is likely to occur, you
agree to permit First Due Web Services, at its option and expense, either to:
(i) procure for you the right to continue using the Service; (ii) replace an
individual component of the Service with a product or service, regardless of
manufacturer, performing the same or similar function as the infringing aspect
of the Service, or modify the same so that it becomes non-infringing; or (iii)
if neither of the foregoing alternatives is reasonably available, immediately
terminate First Due Web Services' obligations (and your rights) under this TOS
with regard to such Service and refund to you the price originally paid by you
to First Due Web Services for the Service, or the Fee actually received by
First Due Web Services from you for the 3 month period immediately preceding the
occurrence of the event on which the indemnification claim is based.
13. General Provisions
13.1.
Notices
Notices will be
sent to you at the address you provide to us. It is your obligation to ensure
that we have the most current address for you in our records
Please refer to our website, First Due Web Services, for contact information
for most issues, including technical support and billing. Notices regarding
this TOS and other First Due Web Services policies should be directed to:
First Due Web Services
6 Youngman Drive
Long Valley, NJ 07853
13.2.
Force Majure
Except for the
obligation to pay the Fees, neither party shall be liable for any delay or
failure in performance due to events outside the defaulting party's reasonable
control, including without limitation acts of God, earthquake, labor disputes,
shortages of supplies, riots, war, fire, epidemics, failures of
telecommunication carriers, delays of common carriers, or other circumstances
beyond its reasonable control. The obligations and rights of the excused party
shall be extended on a day-to-day basis for the time period equal to the period
of the excusable delay. The party affected by the such an occurrence shall
notify the other party as soon as possible, but in no event less than ten days
from the beginning of the event.
13.3.
No Waiver.
No waiver of rights
under this TOS, or any First Due Web Services policy, or agreement between you
and First Due Web Services shall constitute a subsequent waiver of this or any
other right under this TOS.
13.4.
Assignment
This TOS may be
assigned by First Due Web Services. It may not be assigned by you. This TOS
shall bind and inure to the benefit of the corporate successors and permitted
assigns of the parties.
13.5.
Severability
In the event that
any of the terms of this TOS become or are declared to be illegal or otherwise
unenforceable by any court of competent jurisdiction, such term(s) shall be
null and void and shall be deemed deleted from this TOS. All remaining terms of
this TOS shall remain in full force and effect.
13.6.
No Agency
This TOS does not
create any agency, partnership, joint venture, or franchise relationship.
Neither party has the right or authority to, and shall not, assume or create
any obligation of any nature whatsoever on behalf of the other party or bind
the other party in any respect whatsoever.
13.7. Survival
The following
paragraphs shall survive the expiration or termination of this TOS: 1, 6, 11,
12, 13.