This Agreement applies to all web sites developed and maintained by you through your use of the Service ("Your Sites").
Please contact HiFi at firstname.lastname@example.org if you have any questions about this Agreement.
HiFi will provide the Service on a hosted, subscription basis to you during the term of this Agreement. You may use the Service to design, develop and host web sites for yourself and (if you acquire the Commercial version of the Service) your customers. You agree that your use of the Service and Your Sites will comply with all applicable federal, state, local and foreign laws, rules and regulations.
The Service may be used and accessed only by your employees, independent contractors and (if you acquire the Commercial version of the Service) web site customers ("Authorized Users"). Your independent contractors may use the Service only for your benefit and not for their own or any other company's operations. You shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of this Agreement.
HiFi will use commercially reasonable efforts to make the Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, subject to events outside of its reasonable control.
You shall not sublicense, resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party's benefit.
You may not use the Service:
- To engage in or facilitate any illegal activity;
- To upload, transmit, or otherwise distribute any viruses or other harmful, disruptive or destructive files;
- In a manner that interferes with or disrupts networks and systems connected to the Service. You agree to comply with all regulations, policies, and procedures of such networks and systems.
- Primarily as a remote storage server;
- To send junk e-mail, Spam, or other unsolicited messages, including for the purpose of publicizing any of Your Sites.
- abuse, harass, stalk, threaten, or otherwise violate the legal rights of others;
- To Restrict or inhibit any other user from using the Service;
- To Impersonate any person or entity, including, but not limited to, an HiFi representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; or
You agree to use caution when hosting files for downloading that exceed 10 MB. HiFi may in its discretion refuse to host files for download that are excessively large.
In addition, you represent and warrant that neither the content (including text, data, software, graphics, video files, audio files, images, and photographs, the "Content") supplied by you and your customers nor your use of the Service:
- Is pornographic, obscene, or excessively violent;
- Is libelous, slanderous, or otherwise defamatory;
- Infringes any third-party copyright, trademark, or other intellectual property right;
- violates any right of privacy, publicity, or identity;
- has been manipulated or altered in order to disguise the origin of any Content transmitted or stored through use of the Service
- otherwise violates any law, rule, or regulation or promotes any illegal activities.
HiFi shall have no duty to preview, verify, maintain, or correct Content supplied by you or your customers; however, you agree that HiFi may, at its sole discretion and without notice, delete or refuse to include any portion of such Content that HiFi determines to be in violation of this Agreement.
You agree to pay HiFi the fees for the Service plan as selected by you on the order form on the Site. The monthly fees are payable per each of Your Sites supported by the Service. All payments under this Agreement are made in advance, are non-refundable and, unless otherwise agreed, shall be made in United States dollars. The fees and rates for the Service are subject to change by HiFi upon at least sixty (60) days' notice to you (which notice may include disclosure of such revised fees on the Service or the Site).
Fees are based on reasonable and normal usage of storage and bandwidth by Your Sites. Normal usage is defined as use of no more than 25GB of storage and no more than 125GB bandwidth per month by each of Your Sites. HiFi may enforce these limitations by restricting the Service itself, or by contacting you and requiring you to either restrict usage or upgrade your account if one or more of Your Sites are found to be outside of the normal range of use.
You shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by HiFi, but excluding taxes based upon the net income of HiFi.
If a payment becomes overdue, HiFi reserves the right to suspend Your access to the Service and the Site without liability to You, until payment is made in full.
You agree that HiFi is the sole owner of all intellectual property rights in and to the Service, the proprietary software used by HiFi to deliver the Service (including all associated updates and documentation, the "Software"), and the Site, including but not limited to the structure, organization, design, algorithms, HiFi System Templates, data models, logic flow, and screen displays associated therewith. Your right to use the Service is non-exclusive and non-transferable.
You will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. In addition, you agree not to modify, distribute, or alter the Software or Service without HiFi's prior written consent. HiFi reserves all rights in the Service not expressly granted to you hereunder.
HiFi shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by you or any Authorized User relating to the Service.
The parties agree that all Content that may be accessed by or through your use of the Service is the sole responsibility of the person from whom the Content originated. You retain all intellectual property rights in and to the Content that you provide in connection with your use of the Service. You grant HiFi the right to use, copy and distribute such Content: (a) as necessary to provide the Service; and (b) for the purpose of reasonable promotion and marketing by HiFi of its Service. HiFi also reserves the right to make disclosures of Content to governmental authorities and law enforcement, or to third parties, as HiFi believes in good faith are required by law.
You agree that all user information provided to HiFi by you and the Authorized Users, whether for purposes of obtaining a user name and password or otherwise, will be accurate and complete in all respects. Further, you agree to promptly notify HiFi of any changes to any user information. You further acknowledge that you are solely responsible for: (a) all use of the Service made using your Authorized Users' user names and passwords, and (b) maintaining the confidentiality of your Authorized Users' user names and passwords. Only one individual may access the Service at the same time using the same user name and password. You agree to notify HiFi immediately of any unauthorized use of any Authorized User's email address, user name or password, or any other breach of security regarding the Service of which you become aware.
HiFi will use reasonable efforts to correct or provide workarounds for material deviations between the Service and its Documentation ("Errors") that are reported by you to HiFi. However, HiFi does not warrant or represent that all Errors can and will be corrected.
HiFi will not be obligated to provide any support-related services that are not set forth in this Section 3.
You agree to perform tasks as reasonably requested by HiFi to aid in the resolution of problems, and to implement all reasonable workarounds to problems as directed by HiFi.
This Agreement will continue until terminated as set forth in this Section.
You may terminate this Agreement (in whole or in part) for convenience by providing written notice of termination to HiFi. HiFi may terminate this Agreement (in whole or in part) for its convenience by providing at least sixty (60) days written notice of termination to you.
HiFi will have the right at its option to either terminate this Agreement or suspend your use of or access to the Service in the event you breach this Agreement (including your failure to pay any amounts due under this Agreement).
The Sections entitled Fees, Proprietary Rights, Warranties, Indemnification, Liability, and Dispute Resolution shall survive any termination of this Agreement.
HiFi warrants that the Service will substantially conform to the documentation provided in connection with the Service. In the event of a breach of this warranty by HiFi, you will provide HiFi with prompt written notice, including details regarding such breach. HiFi will then as your sole remedy use commercially reasonable efforts to cause the Service to conform.
HiFi does not warrant that the Service will operate without interruption or error-free. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that HiFi has no control over the functioning of the Internet and HiFi makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HIFI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF YOUR USAGE IN THE TRADE OR BY COURSE OF DEALING.
You, at its expense, shall indemnify, defend and hold harmless HiFi and its affiliates, officers, employees, agents, and directors ("Indemnified Parties") against any claims, losses, liabilities, costs, expenses (including but not limited to attorneys' fees), actions, suits or proceedings arising out of or relating to: (a) your or any Authorized User's use of the Service, (b) your or any Authorized User's breach of this Agreement; (c) your or any Authorized User's failure to comply with any applicable laws and regulations, and (d) your or any Authorized User's infringement of any third-party intellectual property rights or rights of privacy or publicity.
The limit of HiFi's liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to You or to any third party concerning performance or non performance by HiFi, or in any manner related to this Agreement or the Service, for any and all claims shall not exceed in the aggregate the fees paid by You that are applicable to the three (3) months prior to the date that the relevant cause of action accrued (annual fees paid in advance, for example, will be divided by four to determine this damage cap).
In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, savings, data, or the cost of recreating lost data), even if it has been advised of their possible existence.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, North Carolina (USA), under the commercial arbitration rules of the American Arbitration Association ("AAA"). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party's rights hereunder through specific performance, injunction or similar equitable relief.
This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina (USA), without regard to conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
If You has acquired trial use of the Service, then, notwithstanding anything to the contrary herein: (a) the Trial Use is provided "AS-IS", without warranty of any kind, express or implied; and (b) your account will convert to a full paying account at the end of the trial use period unless you have notified HiFi in writing that it wishes to terminate this Agreement prior to the end of the trial use period.
HiFi shall not be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond its reasonable control, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
This Agreement constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.
The parties are and intend to be independent contractors with respect to the services contemplated hereunder. No joint employer, joint venture, partnership, or similar relationship between the parties is intended or created.
The Service is delivered and hosted from the United States. You acknowledge that access to the Service from outside the United States may be subject to United States and other countries' export laws, as well as the general laws.
You may not assign or transfer its rights or obligations under this Agreement without the prior written consent of HiFi, and any such attempted assignment shall be null and void.
By completing the registration process and/or using the Service, you warrant that you are 18 years old or older and are authorized to bind the entity you represent (as applicable), and agree to all of the terms in this Agreement. You may print and keep a copy of this Agreement.
HiFi reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to the Site. Your continued use of the Service following the posting of such changes constitutes acceptance of those changes. HiFi will use reasonable commercial efforts to provide notice of material changes to you. HiFi also reserves the right to modify the Site and the Service at any time without prior notice to you.