This Internet Services Agreement (this 'Agreement') is between Leaver & Co., and the person (individual or legal person) who agrees to Leaver & Co.'s service order and set up form (the 'Order') incorporating this Agreement by reference ('Customer'). This Agreement governs Customer's use of Leaver & Co.'s Internet services.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Leaver & Co.'s credit approval requirements, Leaver & Co. agrees to provide the Internet services described in the Order for the fees stated in the Order.
Leaver & Co. reserves the right to refuse service to anyone, for any reason, at any time.
The initial service term of the Agreement shall begin on the date that Leaver & Co. generates an e-mail message to Customer announcing the activation of the Customer's account (the 'Service Commencement Date') and shall continue for the number of full calendar months stated in the Order (the 'Initial Term'). Upon expiration of the Initial Term, this Agreement shall perpetually renew for additional terms, containing the same number of full calendar months as the Initial Term (a 'Renewal Term') unless Leaver & Co. or Customer provides the other with cancellation notice of non-renewal prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the 'Term.'
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be a calendar month, three calendar months, six calendar months, twelve calendar months or twenty four calendar months as indicated on the Order. The first service fee shall include the fee for the first full billing cycle, and, depending on service(s) ordered, a setup fee. Leaver & Co. may require payment in full of the first fee before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Leaver & Co. to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise Leaver & Co. will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 10th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars, by check or credit card. Payment of any invoice by credit card authorizes Leaver & Co. to retain said credit card on Customer's account for automatic payment of any due services, until Customer requests such credit card information be removed, at which point Customer will be expected to pay by check. Customer is responsible for providing Leaver & Co. with changes to billing information (such as credit card expiration, change in email address, etc.) Leaver & Co. may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Leaver & Co. may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Leaver & Co.'s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Leaver & Co.'s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b.) Fee Increases
Leaver & Co. may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer at http://www.leaver.com/blog.php of the new fees at least thirty (30) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
At Leaver & Co.'s request Customer shall remit to Leaver & Co. all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Leaver & Co.), regardless of whether Leaver & Co. fails to collect the tax at the time the related services are provided. Customer will pay and indemnify and hold Leaver & Co. harmless from any and all taxes associated with or arising from Customer's use of the Services, including any penalties and interest and any costs associated with the collection or with holding thereof.
(d.) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Leaver & Co. terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Leaver & Co.'s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Customer acknowledges that all fees are non-refundable, and that any attempts to circumvent this policy, whether through credit card chargeback, threat of chargeback or other means, will result in immediate termination of all services, and re-assignment of all customer's domain names, if any, to Leaver & Co.. Each chargeback will incur an additional $25.00 chargeback fee.
4. Special Requirements
(a.) Website hosting customers must use our dns servers
For any service involving a hosted domain name, Leaver & Co. requires customer to use our dns servers in order for Leaver & Co. to ensure that all dns records will be maintained properly by our control panel system. The use of external dns services to manage dns records for domains we host is not permitted.
(b.) Website hosting customers must not use external hosting
Customer may not use our web hosting services for domain email while having the website (@ and www dns records) pointed to an external provider.
Customer agrees to use the service in compliance with applicable law and Leaver & Co.'s Acceptable Use Policy contained herein. Customer agrees that Leaver & Co. may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Leaver & Co.'s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Leaver & Co.'s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Leaver & Co. and Customer regarding the interpretation of the AUP, Leaver & Co.'s commercially reasonable interpretation of the AUP shall govern.
6. Customer Information
Customer represents and warrants to Leaver & Co. that the information he, she or it has provided and will provide to Leaver & Co. for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Leaver & Co. that he or she is at least 18 years of age. Leaver & Co. may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless Leaver & Co., Leaver & Co.'s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements 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 actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
8. Disclaimer of Warranties
Leaver & Co. DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Leaver & Co. DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN 'AS IS' BASIS.
9. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY 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 AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Leaver & Co. AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
(a.) Suspension of Services
Customer agrees that Leaver & Co. may suspend services to Customer without notice and without liability if: (i) Leaver & Co. reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Leaver & Co. reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Leaver & Co.'s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Leaver & Co. fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. After the ten (10) days Leaver & Co. will not be responsible for any data in whole, or part. The Agreement may be terminated by Leaver & Co. prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within one (1) days of a written notice from Leaver & Co. describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
11. Requests for Customer Information
Customer agrees that Leaver & Co. may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Leaver & Co. believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
12. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by Leaver & Co. nothwithstanding any agreement by Leaver & Co. to provide back up services. Leaver & Co. will not be responsible for any loss of data in whole, or part.
13. Changes to Leaver & Co.'s Network
Upgrades and other changes in Leaver & Co.'s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Leaver & Co. reserves the right to change its network in its commercially reasonable discretion, and Leaver & Co. shall not be liable for any resulting harm to Customer.
Notices to Leaver & Co. under the Agreement shall be given via electronic mail by use of the Contact Page. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. 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 delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
15. Force Majeure
Leaver & Co. shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Leaver & Co.'s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, 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.
16. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of Tennessee, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN SUMNER COUNTY, TENNESSEE, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. 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. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Leaver & Co. unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: 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 of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Leaver & Co.'s prior written consent. Leaver & Co.'s approval for assignment is contingent on the assignee meeting Leaver & Co.'s credit approval criteria. Leaver & Co. may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
18. Acceptable Use
The following list of Prohibited Activities is an integral part of your Internet Services Agreement with Leaver & Co.. If you engage in any of the activities prohibited by this AUP document Leaver & Co. may suspend or terminate your account.
Customer shall be liable for any damages caused by customer's activity in breach of this policy, and shall be disqualified for any refund under the 30 day money back guarantee.
Leaver & Co.'s Acceptable Use Policy (the "Policy") for Leaver & Co. Services is designed to help protect Leaver & Co., Leaver & Co.'s customers and the Internet community in general from irresponsible or, in some cases, illegal activities. The Policy is a non-exclusive list of the actions prohibited by Leaver & Co.. Leaver & Co. reserves the right to modify the Policy at any time, effective upon posting at http://www.leaver.com/aup.php
Prohibited Uses of Leaver & Co. Systems and Services
1. Allowing your services, through neglect or failure to keep script code up to date, to be defaced, exploited or otherwise abused by third parties.
2. Abuse or overuse of server resources, whether intentional or unintentional. Any website which uses an unreasonable amount of CPU, memory or concurrent processes for shared hosting may be subject to limitations or termination.
3. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, vulgar, pornographic or of an adult-only, sexually provocative or suggestive nature, defamatory, constitutes an illegal threat, or violates export control laws.
4. Sending Unsolicited Bulk Email ("UBE", "spam"). The sending of any form of Unsolicited Bulk Email through Leaver & Co.'s servers is prohibited. Likewise, the sending of UBE from another service provider advertizing a web site, email address or utilizing any resource hosted on Leaver & Co.'s servers, is prohibited. Leaver & Co. accounts or services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.
5. Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Leaver & Co. customers or their clients must be Closed-loop ("Confirmed Opt-in"). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to from any Leaver & Co.-hosted domain, or referencing any Leaver & Co. account, is prohibited.
6. Not including an easy, highly visible one-click unsubscribe link on any mass mailing sent. All mass mailing, regarldess of volume, must allow any recipient to opt-out in a completely automated fashion, such that the recipient receives no further emails. If this cannot be implemented with a mailing list management script of some kind, consider using an email marketing service.
7. Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, denial of service attacks.
8. Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org.
9. Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (e.g., "cracking").
10. Using a single shared hosting or streaming plan to run a reseller business. Hosting and streaming plans are to be used only for single entities. For hosting reselling we provide Cloud Servers with various hosting control panels for use by hosting resellers.
11. Obtaining or attempting to obtain service by any means or device with intent to avoid payment.
12. Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any Leaver & Co. customers or end-users by any means or device.
13. Knowingly engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Leaver & Co. network or on another provider's network.
14. Using Leaver & Co.'s Services to interfere with the use of the Leaver & Co. network by other customers or authorized users.
Customer Responsibility for Customer's Users
Each Leaver & Co. customer is responsible for the activities of its users and, by accepting service from Leaver & Co., is agreeing to ensure that its customers/representatives or end-users abide by this Policy. Complaints about customers/representatives or end-users of an Leaver & Co. customer will be forwarded to the Leaver & Co. customer's postmaster for action. If violations of the Leaver & Co. Acceptable Use Policy occur, Leaver & Co. reserves the right to terminate services with or take action to stop the offending customer from violating Leaver & Co.'s AUP as Leaver & Co. deems appropriate, without notice.
Information we collect
When you sign up for our service, we will ask you to provide contact information such as your name, address, telephone numbers, e-mail addresses, and payment information such as credit card number and expiration date.
We may ask you to complete user surveys, and to provide certain demographic information, such as age, gender, special interests, etc. You do not have to provide this type of information to use our service if you do not want to.
If you contact us for customer support, we may also ask you for information about your operating system, software and other technical matters. When you visit our Web site we will capture your IP Address, time of and duration of visit, and time and duration of the pages on our Web site that you view. We may tie this information to the personally identifiable information we have about you.
We will also place a cookie that will identify you to us as a repeat visitor or a customer when you visit our Web site. See "What is a Cookie" below. We may tie this cookie to the personally identifiable information we have about you.
[If we send you an e-mail, we may include a marker that will allow to identify e-mail that is opened and viewed.]
Use of personally identifiable information
We will use your personally identifiable information only as follows:
• For payment purposes and to provide customer support
• To announce special offers or provide other information from time to time via e-mail. We may also send e-mail announcing special offers by our third parties, but we will not provide the third parties with your e-mail address or other personally identifiable information. If you do not wish to receive these e-mails, you may opt out of future e-mails at any time by following the instructions included in the e-mail
• To improve our service and the marketing of our service. For example, we may use the information we gather from user surveys, demographic data, and web site visits to help us improve or target our Web site and customize your visit
We will not provide any personally identifiable information about you to any other person other than:
• a law enforcement or regulatory agency with a proper court order
• a person or company who acquires our business
• third parties who perform services on our behalf (such as payment processing), subject to the third party agreeing with us that it will keep your personally identifiable information confidential
• As otherwise needed to protect or enforce or rights or the rights of others
We absolutely will not transfer or sell your information to any third party not listed above.
Use of non-personally identifiable information
We may share aggregate statistical data about our customers with third parties, such as advertisers or suppliers. This aggregate statistical data will not identify you personally.
What is a cookie?
A cookie is an alphanumeric identifier that is unique to your browser. The cookie will identify your browser to us when you visit our web site so that we may customize your visit.
Security of your information
We store your personally identifiable information and payment information in a secure encrypted database.
Our service is not available to children under the age of 18, and we will not intentionally maintain information about anyone under the age of 18.