Terms of Service Agreement
Version Date: Monday, March 22,2010
1. General:
1.1. 31 Moons, LLC (“31 Moons”) provides services (“Services”) to its customers (each, a “Customer”) under terms set forth in this Terms of Service Agreement (this “Agreement”).
1.2. BY COMPLETING THE REGISTRATION PROCESS, WHICH PROCESS INCLUDES A STEP BY WHICH CUSTOMER AFFIRMATIVELY ACCEPTS THIS AGREEMENT, CUSTOMER: (a) agrees to be bound by this Agreement; (b) represents and warrants that, if Customer is an individual, Customer is 18 years old or older or, if Customer is an entity, that Customer is a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agrees to provide true, accurate, current, and complete information during the registration process, including billing and payment-related information and other account information, and agrees to maintain and update this information to keep it true, accurate, current, and complete; (d) agrees to be bound by the terms of the ICANN Uniform Domain Name Dispute Resolution Policy located at http://www.icann.org/udrp/udrp.htm as may be amended or relocated from time to time; and (e) represents and warrants that Customer has the power and authority to enter into and perform under this Agreement. If this Agreement or any future changes are unacceptable to Customer, Customer’s sole remedy is to cancel the Services. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO THIS AGREEMENT, CUSTOMER SHOULD NOT COMPLETE THE REGISTRATION PROCESS. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THIS AGREEMENT, THEN SUCH CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
1.3. If 31 Moons provides or resells certain software or services to Customer, Customer understands and agrees that Customer may be bound by additional terms and conditions imposed by third-party resellers or licensors, which are also hereby incorporated herein by reference.1.4. Customer agrees to abide by the laws of the United States and of the state and country, in which Customer is located, including, but not limited to, all intellectual property laws, tariff regulations, export controls, treaties, and international laws.
1.5. 31 Moons may periodically change, modify, or update this Agreement. Notice will be provided by posting new versions on the 31 Moons website, with the version dates as indicated at the top of this Agreement. In 31 Moons’s discretion, notice may also be provided by posting a notice in the 31 Moons support area, and/or by email notification made to the email indicated in Customer’s account settings. Therefore, Customer needs to ensure that contact information in Customer’s account settings is kept up to date. The changes, modifications or updates to this Agreement will become effective 30 days following the posting of the new version, or other notice that may be provided by 31 Moons. Continued use of the Services after such 30 day notice period will constitute Customer’s acceptance of a new version of this Agreement. Please refer to this Agreement regularly to remain updated as to current terms of this Agreement. Changes to this Agreement that affect dispute resolution provisions will only be applicable for disputes arising after the effective date of a new version of this Agreement. Customer agrees that 31 Moons may send Customer service-related or other notices by e-mail rather than by postal mail.
1.6. Customer agrees to maintain the confidentiality of the Customer account, and to not share the account password, security question answers, or any other confidential information about Customer’s account with others.
1.7 The Infringement Policy, the Privacy Policy, Appendix A (Managed Hosting Services), Appendix B (Dedicated Hosting Services + Semi-Dedicated Hosting Services), Appendix C (Shared Hosting Services), and Appendix D (Virtual Private Server Hosting Services) each are hereby incorporated into this Agreement by reference, and all such documents are collectively referred to herein as “this Agreement”.
2. Prohibited Uses:
2.1. Customer agrees that Customer will not knowingly use the Services, among other things, to:
(a) upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;(b) harm minors in any way;
(c) impersonate any person or entity, including but not limited to a 31 Moons official, forum leader, guide, or host, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(e) upload, post, email, transmit, or otherwise make available any content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(g) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(h) upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Services or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;(j) intentionally or unintentionally violate, attempt to violate, or avoid any applicable ICANN regulation or policy;
(k) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;
(l) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(m) "stalk" or otherwise harass another;
(n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or
(o) collect, transmit, or store any type of adult, mature, or sexually explicit content.
4. Fees and Billing:
4.1. Customer agrees to pay for the Services that Customer selects. The fees may include setup fees, monthly fees, quarterly fees, annual fees, usage fees, web traffic fees, hourly fees, late fees, and other fees. Customer shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges imposed on, or with respect to, the Services under this Agreement.
4.2. Applicable setup fees and the fees due for the first service billing period (e.g., first month, first quarter, first year, first two years) are both due on the initial Services start date. Customer may elect to change the billing period at any time; however, the new billing period will only take effect at the time of the plan period renewal. 31 Moons may change the pricing for new Services at any time and for existing Services at the beginning of any new billing period. Refunds are only available in accordance with the 60-day money back guarantee described below. Refunds will be provided by the same payment method of the original payment.
4.3. All periodic payments are due on the account statement date or for other payments, when invoiced, or as otherwise may be agreed by 31 Moons. The account statement date is the anniversary (monthly, quarterly, annually or bi-annually) of the date the initial Services start date. If Customer provides 31 Moons credit or debit card or automatic bank withdrawal information (the “Payment Method”), Customer authorizes 31 Moons to automatically charge the Payment Method for all charges that apply to Customer’s account. Recurring charges will be posted to Customer’s Payment Method without requiring additional authorization until such time that Customer cancels Customer’s account. Customer is responsible for updating, or notifying 31 Moons, of any changes to Customer’s Payment Method (including, but not limited to card number, expiration date, billing address, or card status). Customers not paying by an approved Payment Method agree to make payment of their balance due by no later than the account statement date, or for non-periodic payments, within 10 days of the invoice date. Payment must be received by such due dates to avoid incurring late fees. 31 Moons does not mail paper invoices or statements. Statements can be viewed and printed through the Customer account settings.
4.4. 31 Moons may charge Customer interest on unpaid balances at the lesser of the rate of 1.5% per month or the maximum rate allowed by law. Accounts 15 days overdue are subject to suspension of Service without notice until any overdue account has been made current by paying any and all overdue invoices. Time necessary for account restoration after suspension may vary. 31 Moons may use a third-party service to collect unpaid amounts and may charge Customer attorney’s, collection, or other reasonable fees incurred to collect unpaid balances.
4.5. If Customer disputes a charge, Customer must pay the whole amount to avoid service interruption and notify 31 Moons about the disputed amount. If 31 Moons validates Customer’s claim, Customer’s account will be credited with the validated amount. 31 Moons will not review or accept any billing error claims submitted more than ninety (90) days after disputed charges were incurred.
4.6. Customer specifically understands and agrees that for each “chargeback” Customer initiates to Customer’s credit card for fees paid to 31 Moons that Customer will be liable to 31 Moons (and 31 Moons may collect from Customer) a “chargeback fee” in the amount of $39.00. Upon the occurrence of any chargeback, regardless of cause, 31 Moons may suspend Customer’s account. Additionally, Customer will be charged a $25.00 fee for all returned checks. 31 Moons does not charge fees for accepting payment via domestic bank wire, however, international wire transfers may be assessed a $20.00 processing fee by an intermediary bank. In addition, Customer’s issuing bank may also charge a fee for sending the wire. Please add these fees to the amount that Customer is sending to 31 Moons or the amount credited to Customer’s account will be less than the intended payment.
4.7. Customer will be liable for all unfunded term commitments on Customer’s account. For example, if Customer signed up for one (1) year of service and cancels the account (or the account is terminated) after five (5) months, the unpaid fees for the remainder of the term commitment will automatically accelerate and Customer will immediately become liable for all unpaid charges on Customer’s account.
4.8. Charges for bundled Services will be “unbundled” if a portion of the bundle of Services is terminated.
4.9. Customer understands and agrees that Customer is responsible for any network bandwidth, memory over usage, or other overage charges Customer incurs for using the Services, even if such overages arise due to Customer’s failure to protect Customer’s password or account privacy.
4.10. If Customer wishes to reactivate a closed or suspended account, Customer will be assessed a $19.95 reactivation fee. A $99.95 fee will be assessed if 31 Moons restores data files to a reactivated account.
4.11. 60-Day Money Back Guarantee: Except for dedicated hosting and virtual private server hosting, each of 31 Moons's hosting plans carries a 60-day unconditional money back guarantee. If Customer is not completely satisfied with 31 Moons’s services or support within the first 60 days, Customer will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. For dedicated hosting and virtual private server hosting, this guarantee is modified, so that the payment for the 1st 30 day period is not refundable, but the payment for the 2nd 30 day period is refundable. The following services do not qualify for the 60-day money back guarantee: additional items and services; items and services ordered through a reseller program; and overage fees.
5. Account Changes; Cancellation:
5.1. Customers electing to change to a lower priced hosting plan on the same platform will be charged a $19.95 downgrade fee. There is no upgrade fee for upgrading to a higher priced plan, however, Customer will be charged any difference between the setup fee applicable to the new and former plans.
5.2. Hosting plans will automatically renew until a plan is cancelled. In order to cancel service, Customer should go to the cancel account link in the Customer account settings. Alternatively, Customer may contact 31 Moons's customer service representatives, Monday through Friday, 9:00 A.M. to 5:00 P.M. Central Time, at 815-306-0309 or via email at sale@31Moons.com. Cancellation requests must be received by 31 Moons a minimum of 30 days prior to the end of a billing cycle for all server hosting plans. Cancellations submitted later than this time may result in automatic renewal of the hosting plan. Cancellations become effective on the day processed by 31 Moons. 31 Moons is unable to cancel an account effective for a future date. 31 Moons will confirm the cancellation request when it is processed. If Customer does not receive a confirmation, please contact 31 Moons as soon as possible.
6. Ownership:
Customer understands and agrees that (a) 31 Moons or any applicable licensor retains all rights, title, and interest in and to any computer programming, formatting code, operating instructions, or other software used in providing the Services to Customer and (b) that Customer will not, and will not facilitate another to, reverse engineer, disassemble, decompile, or otherwise attempt to derive any source code of any software.
7. Backups:
For its own operational efficiencies and purposes, 31 Moons backs up data on the managed and shared servers every 24 hours (which back ups are deleted after 24 hours when the next backup is performed), but 31 Moons is under no obligation or duty to perform backups under this Agreement. IT IS SOLELY CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL 31 MOONS BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA ON ANY 31 MOONS SERVER.
8. Monitoring and Disclosures:
All activities occurring on, in, and/or via the Services or any website hosted by 31 Moons may be monitored, recorded, and examined by any authorized person, including as well law enforcement. In general, 31 Moons does not monitor its Customer’s websites or activities to determine whether they are in compliance with this Agreement. However, when and if 31 Moons becomes aware of any violation of this Agreement, 31 Moons may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via 31 Moons, and/or removing non-complying information. 31 Moons may disclose any information in its possession, including, without limitation, information about Customer, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect 31 Moons or others from harm, and/or to ensure the proper operation of the Services. 31 Moons has no obligation to notify any person, including the Customer about whom information is sought, that 31 Moons has provided the information. 31 Moons and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, 31 Moons and its designees shall have the right to remove any content that violates this Agreement, is illegal, is alleged to infringe any intellectual property rights or violate any person’s right of privacy, or is otherwise objectionable as determined in 31 Moons’s sole discretion.
9. Term and Termination:
9.1. This Agreement will become effective when Customer completes the acceptance procedures. This Agreement will remain in effect until its termination by either party under its terms.
9.2. 31 Moons may terminate this Agreement, at its convenience, without cause, at any time upon notice to Customer. Notwithstanding anything to the contrary herein, 31 Moons may also, but has no duty to, immediately suspend or terminate the Services, terminate Customer’s access and password, remove Customer’s Service from 31 Moons’s servers, or remove any content within the Services, if 31 Moons concludes, in its sole discretion, that Customer (a) has breached, violated, or acted inconsistently with the letter or spirit of this Agreement, including any applicable law or regulation; (b) has provided false information as part of account information; (c) has failed to keep account information complete, true, and accurate; (d) fails to respond to any email communication sent to the email address listed in account information; (e) is engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (f) is engaged in activities or sales that may damage the rights or reputation of 31 Moons or others (each "Termination for Cause"). Any Termination for Cause by 31 Moons will take effect immediately, and Customer expressly agrees that Customer will not have any opportunity to cure.
9.3. Customer understands and agrees that upon termination of this Agreement 31 Moons has the right to immediately bar Customer’s access to any and all content related to the Customer’s website or account. Upon any termination of the Services, 31 Moons reserves the right to permanently delete from its servers any and all information and content contained in Customer’s account or Service, including but not limited to order processing information, mailing lists, files, email, and any web pages generated by Customer or the Services. 31 Moons accepts no liability for such deleted information or content.
10. Limitations; Indemnification; Disclaimers:
10.1. IN NO EVENT WILL 31 MOONS’S LIABILITY TO A CUSTOMER IN THE AGGREGATE FOR ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO 31 MOONS DURING THE ONE (1) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM OF LIABILITY AND $50.00.
10.2. IN NO EVENT WILL 31 MOONS, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, CONTRACTORS OR EMPLOYEES BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY THIRD PARTY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS OR LOSS OF PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SERVICES WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF 31 MOONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS 31 MOONS WOULD NOT ENTER INTO THIS AGREEMENT.
10.3. PCI Compliance: The Payment Card Industry (PCI), including MasterCard and Visa, require banks, online merchants and others to protect cardholder information by adhering to a set of security standards. PCI compliance is solely Customer’s responsibility and 31 Moons is not responsible for ensuring that Customer’s business is PCI compliant. PCI compliance involves many things out of 31 Moons control including Customer’s network and business processes. 31 Moons is continually improving its systems, but 31 Moons does not warrant that its systems are PCI compliant and does not represent that it will achieve such compliance in the future. For more information on PCI compliance, 31 Moons recommends that Customer read the information on the following web site: http://www.pcicomplianceguide.org/merchants.php. Customer agrees that the Customer indemnification set forth below includes any claims made against 31 Moons arising out of Customer’s failure to be PCI compliant.
10.4. Customer agrees to indemnify, defend by counsel reasonably acceptable to 31 Moons, and protect and hold 31 Moons harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants and attorneys fees and court costs, demands, causes of action, and judgments directly or indirectly arising out of or related to Customer’s use of the Services, including, without limitation, any violation of the terms of this Agreement.
10.5. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between Customer and 31 Moons. Also, neither party to this Agreement shall have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other.10.6. 31 MOONS DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND 31 MOONS EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. CUSTOMER UNDERSTANDS AND AGREES THAT 31 MOONS WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE SERVICES, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. ALL SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE DEEMED ACCEPTED WHEN DELIVERED.
10.7 Customer shall be permitted to resell hosting services. All domains for which Customer provides the resale services are governed by the terms of this Agreement. THE RESOLD SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND 31 MOONS DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RESOLD SERVICES, THE RELIABILITY, SECURITY, CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE SERVERS USED OR THE GOODS OR SERVICES OFFERED AND 31 MOONS EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AGREES TO RELEASE, INDEMNIFY, AND HOLD 31 MOONS, ITS CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES (INCLUDING PARENT AND SUBSIDIARY COMPANIES) HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO CUSTOMER’S ROLE AS A RESELLER OF HOSTING SERVICES.
11. Compliance:
11.1. Customer represents and warrants that Customer is not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. Customer further represents and warrants that Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer agrees to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. Customer shall be responsible for determining what laws or regulations are applicable to Customer’s use of the Services. Customer shall, upon the request of 31 Moons, provide 31 Moons assurance of Customer’s compliance with those laws. Customer acknowledges that 31 Moons exercises no control whatsoever over the content of the information passing through Customer’s site(s) and that it is Customer’s sole responsibility to ensure that the information Customer and Customer’s users transmit and receive complies with all applicable laws and regulations.
11.2. Customer is responsible for charging and collecting from Customer’s end-user customer’s any and all applicable taxes. If Customer fails to impose and/or collect any tax from end users or Customer’s other retail customers as required herein, then, as between 31 Moons and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and/or collect from end users or Customer’s other retail customers, Customer agrees to indemnify and hold harmless 31 Moons for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from 31 Moons due to Customer’s failure to pay or collect and remit such tax to such authority.
12. Miscellaneous:
12.1. This Agreement may not be assigned by Customer without 31 Moons’s express written consent. 31 Moons may assign any or all of its rights and obligations to others at any time.
12.2. This Agreement is the final expression of the agreement between a Customer and 31 Moons regarding the Services. This Agreement may not be modified or amended, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument executed by 31 Moons, or as otherwise provided herein.
12.3. 31 Moons’s waiver of Customer’s breach of any portion of this Agreement shall not operate or be construed as its waiver of any subsequent breach of the same provision or any other portion of this Agreement and no remedy available to 31 Moons hereunder is exclusive of any other remedy available to 31 Moons hereunder or otherwise available at law or in equity.
12.4. If any provision of this Agreement or its application is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect enforced to fullest extent consistent with applicable law.
12.5. Customer agrees that Customer will not solicit 31 Moons employees to become Customer’s employees or contractors.
12.6. The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
12.7. 31 Moons shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of god, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, failure of any Internet infrastructure or component or of communications provider networks, other catastrophes, or any other circumstances beyond 31 Moons’s reasonable control.
12.8. This Agreement shall be binding on Customer and 31 Moons and Customer’s successors and assigns, and shall be governed by the laws of the state of Illinois without giving effect to such state’s law provisions regarding conflict of laws. Any action arising out of or related to this Agreement shall be brought in the applicable federal or state courts located in or with jurisdiction over Will County, Illinois, and each party consents to the jurisdiction and venue of these courts. Each party expressly disclaims application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
12.9. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
12.10 Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), email, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to Customer as set forth contact information provided by Customer to 31 Moons or addressed to 31 Moons as set forth below, or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier, fax or email, it shall be effective upon receipt; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
13. Contact Information:
31 Moons, LLC
PO Box 1004
Lockport, IL 60441
email: info@31Moons.com
fax: (623) 321-5536
phone: (815) 306-0309Complaints: In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact 31 Moons as set forth above or, if any complaint with us is not satisfactorily resolved, and Customer is a California resident, Customer can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
| APPENDIX A Managed Hosting Services |
APPENDIX B Dedicated and Semi-Dedicated Hosting Services |
APPENDIX C Shared Hosting Services |
APPENDIX D Virtual Private Server (VPS) Hosting Services |
APPENDIX A
Managed Hosting Services
The following terms apply when a Customer orders Managed Hosting Services from 31 Moons:
1. Services:
(a) 31 Moons will provide Customer with the hardware, licensed operating system, licensed web server software, application software, Internet connectivity level, including bandwidth, email addresses, and hard drive space, specified in the Managed Hosting Services plan Customer selects, including a root access password.
(b) 31 Moons will provide Customer with reasonable customer support during 31 Moons’s standard customer support hours for the Managed Hosting Services plan via 31 Moons’s customer account/support area http://31moons.com/support . Please see our Problem Management (http://www.31moons.com/legal-problem-manage.php) procedures for how problem tickets are managed.
(c) 31 Moons will provide second level support to Customers that are reselling hosting services. Customer will provide first level support for its end user customers. However, if there are issues that Customer is unable to resolve, then Customer can contact 31 Moons for assistance.
(d) 31 Moons provides full proactive monitoring of the server, log files, kernel updates, server software installation and configuration, security updates, patches, firewall installation and configuration, etc.
(e) If Customer requires any services not covered by this Appendix, Customer will be charged at 31 Moons’s standard hourly rate.
2. Restrictions:
(a) Customer agrees that Customer will not use or install unlicensed or illegitimate third party software in conjunction with the managed server.
(b) Customer agrees to use only the services included in the web hosting plan Customer selects. Customer agrees not to run any “server applications” including any program or script that opens a port on the Managed Hosting Services server such as Internet Relay Chat (IRC) servers, IRC proxies, and IRC bots.
(c) Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. 31 Moons does not permit CGI script sharing with domains not hosted by 31 Moons or any scripts that may be abused for unsolicited email purposes.
(d) 31 Moons does not allow managed server customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, 31 Moons provides Java chat rooms that meet most users' needs and run without hindering system performance.
(e) 31 Moons may allow programs to run in the background. These programs will be considered on an individual basis and managed server Customers will incur extra charges based on system resources used and operational maintenance needed. If Customer wishes to run background programs please contact 31 Moons.
(f) 31 Moons's managed server accounts are not configured for the purposes of distributing software and/or multimedia products. If Customer wishes to distribute software and/or multimedia files, please contact 31 Moons to make special arrangements.
(g) Multimedia files are defined as any graphics, audio, and video files. 31 Moons managed server accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any web site with disk space usage for storing multimedia files that exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be used for the purposes of distributing and storing an unusual amount of multimedia files.
(h) Any database stored on managed servers shall be limited in size to 10% of the total disk space allotted for that particular domain's plan/web hosting account.
3. Exceeding Usage Levels:
If Customer’s use of bandwidth, email addresses, hard drive space, or other services exceeds that allotted for Customer’s current managed server account, 31 Moons will charge Customer for such overage at 31 Moons’s then current rates.
5. Excluded Support:
31 Moons will not support any of the applications referenced in Section 2 above. In addition, 31 Moons will not directly support the customers of Customer, provide training to Customer on how to configure or administer the servers, or provide support for HTML programming or any other scripting language.
6. Customer Changes:
Customer may customize the server software. However, if any actual code or configuration modifications made by Customer to the base software provided by 31 Moons results in damage and or malfunction of the server, correction of such damage or malfunction is not covered by 31 Moons standard support. For example, if Customer configures Apache, cPanel, mailserver, ftp, etc. software and causes damage, then if 31 Moons is needed to fix the software, Customer will be charged for these services at 31 Moons’s standard hourly rate.
7. IP Addresses:
31 Moons will also provide Customer with the number of IP addresses specified in the plan Customer selects. Customer will not own and cannot take any IP addresses with them after the termination of the account.
8. 99% Uptime Guarantee:
(a) The Managed Hosting Services servers will be functioning and available 99% of the time in any given month (except during Maintenance Windows (defined below)). Please see our System Availability (http://www.31moons.com/legal-problem-manage.php) specifications reachable via the 31 Moons website. Any 31 Moons breach of this guarantee will be referred to as an “Uptime Breach.”
(b) For every continuous hour a managed server experiences an Uptime Breach, 31 Moons will provide a credit pro-rated to the amount of the total monthly fee paid by Customer to 31 Moons for each hour of downtime (each a “Downtime Credit”). For calculation purposes, the Downtime Credit shall be based on a 720 hour month. Customer’s charges for the following month for basic hosting services, not to exceed in the aggregate 100% of such month’s charges, will be reduced by the amount of the Downtime Credit. Downtime Credits may not be applied against fees for add-on services, and if not completely covered by the following month’s charges, shall not be carried over to a subsequent month.
(c) In order to qualify for a Downtime Credit, Customer must submit a trouble ticket to 31 Moons (http://www.31moons.com/support) or by calling 31 Moons support at (815) 306-0309 The length of each Uptime Breach will be measured from the time the trouble ticket is received and validated by 31 Moons technicians to the time 31 Moons, in its sole discretion, considers the issue resolved.
(d) The total of Downtime Credits given in any one month may never exceed 100% of the charges for basic hosting services for that month.
(e) Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if an account is past due or the account is suspended or cancelled by 31 Moons for violating this Agreement. In addition, Downtime Credits may not be issued if an Uptime Breach arises out of (a) any action taken by Customer or another person authorized to access Customer’s account, (b) the failure of systems, Internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to 31 Moons, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events.
9. Maintenance Windows:
31 Moons “Maintenance Windows” include both scheduled maintenance windows (i.e., Customer receives prior notice) and emergency maintenance windows (i.e., because of immediate threats to 31 Moons’s systems or to Customer’s server Customer receives no prior notice).
10. Limited License:
Customer hereby grants to 31 Moons a limited, royalty-free, non-exclusive license to use, translate, reproduce, publish, distribute, sub-license, exploit, and/or create derivative uses of Customer’s web site and web site content anywhere, in any form, medium, or technology now known or later developed throughout the world for the sole purpose of providing hosting services under this Agreement.
APPENDIX B
Dedicated Hosting Services + Semi-Dedicated Hosting Services
The following terms apply when a Customer orders Dedicated Hosting Services or Semi-Dedicated Hosting Services from 31 Moons:
1. Services:
(a) 31 Moons will provide Customer with the hardware, licensed operating system, licensed web server software, and Internet connectivity level specified in the Dedicated Hosting Services or Semi-Dedicated Hosting Services plan Customer selects, including a root access password.
(b) 31 Moons will provide Customer with reasonable customer support during 31 Moons’s standard customer support hours for the Dedicated Hosting Services or Semi-Dedicated Hosting Services plan via 31 Moons’s customer account/support area http://31moons.com/support. Please see our Problem Management (http://www.31moons.com/legal-problem-manage.php) procedures for how problem tickets are managed.
(C) If Customer requires any services not covered by this Appendix, Customer will be charged at 31 Moons’s standard hourly rate.
2. Restrictions:
Customer agrees that Customer will not use or install unlicensed or illegitimate third party software in conjunction with the dedicated or semi-dedicated server.
3. Excluded Support:
31 Moons will not support any of the applications referenced in Section 2 above. In addition, 31 Moons will not support the customers of Customer, provide training to Customer on how to configure or administer the servers, or provide support for HTML programming or any other scripting language.
4. Customer Changes:
Customer may customize the server software. However, if any actual code or configuration modifications made by Customer to the base software provided by 31 Moons results in damage and or malfunction of the server, correction of such damage or malfunction is not covered by 31 Moons standard support. If 31 Moons is needed to fix the software, Customer will be charged for these services at 31 Moons’s standard hourly rate.
5. IP Addresses:
31 Moons will also provide Customer with the number of IP addresses specified in the Dedicated Hosting Services or Semi-Dedicated Hosting Services plan Customer selects. Customer will not own and cannot take any IP addresses with them after the termination of the account.
6. 99% Uptime Guarantee:
(a) The Dedicated Hosting Services or Semi-Dedicated Hosting Services servers will be functioning and available 99% of the time in any given month (except during Maintenance Windows (defined below)). Please see our System Availability (http://www.31moons.com/legal-problem-manage.php) specifications reachable via the 31 Moons website. Any 31 Moons breach of this guarantee will be referred to as an “Uptime Breach.”
(b) For every continuous hour a dedicated or semi-dedicated server experiences an Uptime Breach, 31 Moons will provide a credit pro-rated to the amount of the total monthly fee paid by Customer to 31 Moons for each hour of downtime (each a “Downtime Credit”). For calculation purposes, the Downtime Credit shall be based on a 720 hour month. Customer’s charges for the following month for basic hosting services, not to exceed in the aggregate 100% of such month’s charges, will be reduced by the amount of the Downtime Credit. Downtime Credits may not be applied against fees for add-on services, and if not completely covered by the following month’s charges, shall not be carried over to a subsequent month.
(c) In order to qualify for a Downtime Credit, Customer must submit a trouble ticket to 31 Moons (http://www.31moons.com/support) or by calling 31 Moons support at (815) 306-0309 The length of each Uptime Breach will be measured from the time the trouble ticket is received and validated by 31 Moons technicians to the time 31 Moons, in its sole discretion, considers the issue resolved.
(d) The total of Downtime Credits given in any one month may never exceed 100% of the charges for basic hosting services for that month.
(e) Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if an account is past due or the account is suspended or cancelled by 31 Moons for violating this Agreement. In addition, Downtime Credits may not be issued if an Uptime Breach arises out of (a) any action taken by Customer or another person authorized to access Customer’s account, (b) the failure of systems, Internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to 31 Moons, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events.
7. Maintenance Windows:
31 Moons “Maintenance Windows” include both scheduled maintenance windows (i.e., Customer receives prior notice) and emergency maintenance windows (i.e., because of immediate threats to 31 Moons’s systems or to Customer’s server Customer receives no prior notice).
APPENDIX C
Shared Hosting Services
The following terms apply when Customer orders Shared Hosting Services from 31 Moons:
1. Services:
(a) 31 Moons will provide Customer with the hardware, licensed operating system, licensed web server software, application software, Internet connectivity level, including bandwidth, email addresses, and hard drive space, specified in the Shared Hosting Services plan Customer selects, including a root access password.
(b) 31 Moons will provide Customer with reasonable customer support during 31 Moons’s standard customer support hours for the Shared Hosting Services plan via 31 Moons’s customer account/support area http://31moons.com/support/. Please see our Problem Management (http://www.31moons.com/legal-problem-manage.php) procedures for how problem tickets are managed.
(c) If Customer requires any services not covered by this Appendix, Customer will be charged at 31 Moons’s standard hourly rate.
2. Restrictions:
(a) Customer agrees that Customer will not use or install unlicensed or illegitimate third party software in conjunction with the dedicated or semi-dedicated server.
(b) Customer agrees to use only the services included in the web hosting plan Customer selects. Customer agrees not to run any “server applications” including any program or script that opens a port on the Shared Hosting Services server such as Internet Relay Chat (IRC) servers, IRC proxies, and IRC bots. In addition, Customer agrees not to share Customer’s Shared Hosting Services space with others or to subdivide and resell Shared Hosting Services space.
(c) Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. 31 Moons does not permit CGI script sharing with domains not hosted by 31 Moons or any scripts that may be abused for unsolicited email purposes.
(d) 31 Moons does not allow shared server customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, 31 Moons provides Java chat rooms that meet most users' needs and run without hindering system performance.
(e) 31 Moons may allow programs to run in the background. These programs will be considered on an individual basis and shared server Customers will incur extra charges based on system resources used and operational maintenance needed. If Customer wishes to run background programs please contact 31 Moons.
(f) 31 Moons's shared server accounts are not configured for the purposes of distributing software and/or multimedia products. If Customer wishes to distribute software and/or multimedia files, please contact 31 Moons to make special arrangements.
(g) Multimedia files are defined as any graphics, audio, and video files. 31 Moons shared server accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any web site with disk space usage for storing multimedia files that exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be used for the purposes of distributing and storing an unusual amount of multimedia files.
(h) Any database stored on shared servers shall be limited in size to 10% of the total disk space allotted for that particular domain's plan/web hosting account.
3. Exceeding Usage Levels:
If Customer’s use of bandwidth, email addresses, hard drive space, or other services exceeds that allotted for Customer’s current shared server account, 31 Moons will charge Customer for such overage at 31 Moons’s then current rates.
4. Excluded Support:
31 Moons will not support any of the applications referenced in Section 2 above. In addition, 31 Moons will not support the customers of Customer, provide training to Customer on how to configure or administer the servers, or provide support for HTML programming or any other scripting language.
5. Customer Changes:
Customer may customize the server software. However, if any actual code or configuration modifications made by Customer to the base software provided by 31 Moons results in damage and or malfunction of the server, correction of such damage or malfunction is not covered by 31 Moons standard support. If 31 Moons is needed to fix the software, Customer will be charged for these services at 31 Moons’s standard hourly rate.
6. IP Addresses:
31 Moons will also provide Customer with the number of IP addresses specified in the Shared Hosting Services plan Customer selects. Customer will not own and cannot take any IP addresses with them after the termination of the account.
7. 99% Uptime Guarantee:
8. Maintenance Windows:(a) The Shared Hosting Services servers will be functioning and available 99% of the time in any given month (except during Maintenance Windows (defined below)). Please see our System Availability (http://www.31moons.com/legal-problem-manage.php) specifications reachable via the 31 Moons website. Any 31 Moons breach of this guarantee will be referred to as an “Uptime Breach.”
(b) For every continuous hour a shared server experiences an Uptime Breach, 31 Moons will provide a credit pro-rated to the amount of the total monthly fee paid by Customer to 31 Moons for each hour of downtime (each a “Downtime Credit”). For calculation purposes, the Downtime Credit shall be based on a 720 hour month. Customer’s charges for the following month for basic hosting services, not to exceed in the aggregate 100% of such month’s charges, will be reduced by the amount of the Downtime Credit. Downtime Credits may not be applied against fees for add-on services, and if not completely covered by the following month’s charges, shall not be carried over to a subsequent month.
(c) In order to qualify for a Downtime Credit, Customer must submit a trouble ticket to 31 Moons (http://www.31moons.com/support) via the Customer’s account or by calling 31 Moons support at (815) 306-0609. The length of each Uptime Breach will be measured from the time the trouble ticket is received and validated by 31 Moons technicians to the time 31 Moons, in its sole discretion, considers the issue resolved.
(d) The total of Downtime Credits given in any one month may never exceed 100% of the charges for basic hosting services for that month.
(e) Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if an account is past due or the account is suspended or cancelled by 31 Moons for violating this Agreement. In addition, Downtime Credits may not be issued if an Uptime Breach arises out of (a) any action taken by Customer or another person authorized to access Customer’s account, (b) the failure of systems, Internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to 31 Moons, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events.
31 Moons “Maintenance Windows” include both scheduled maintenance windows (i.e., Customer receives prior notice) and emergency maintenance windows (i.e., because of immediate threats to 31 Moons’s systems or to Customer’s server Customer receives no prior notice).
9. Limited License:
Customer hereby grants to 31 Moons a limited, royalty-free, non-exclusive license to use, translate, reproduce, publish, distribute, sub-license, exploit, and/or create derivative uses of Customer’s web site and web site content anywhere, in any form, medium, or technology now known or later developed throughout the world for the sole purpose of providing shared server services under this Agreement.
APPENDIX D
Virtual Private Server (VPS) Hosting Services
The following terms apply when Customer orders VPS Hosting Services from 31 Moons:
1. Services:
(a) 31 Moons will provide Customer with the hardware, licensed operating system, licensed web server software, application software, Internet connectivity level, including bandwidth, email addresses, and hard drive space, specified in the VPS Hosting Services plan Customer selects, including a root access password.
(b) 31 Moons will provide Customer with reasonable customer support during 31 Moons’s standard customer support hours for the VPS Hosting Services plan via 31 Moons’s customer account/support area http://31moons.com/support/. Please see our Problem Management (http://www.31moons.com/legal-problem-manage.php) procedures for how problem tickets are managed.
(c) If Customer requires any services not covered by this Appendix, Customer will be charged at 31 Moons’s standard hourly rate.
2. Restrictions:
(a) Customer agrees that Customer will not use or install unlicensed or illegitimate third party software in conjunction with the VPS.
(b) Customer agrees to use only the services included in the web hosting plan Customer selects. Customer agrees not to run any “server applications” including any program or script that opens a port on the VPS Hosting Services server such as Internet Relay Chat (IRC) servers, IRC proxies, and IRC bots. In addition, Customer agrees not to share Customer’s VPS Hosting Services space with others or to subdivide and resell VPS Hosting Services space.
(c) Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. 31 Moons does not permit CGI script sharing with domains not hosted by 31 Moons or any scripts that may be abused for unsolicited email purposes.
(d) 31 Moons does not allow VPS customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, 31 Moons provides Java chat rooms that meet most users' needs and run without hindering system performance.
(e) 31 Moons may allow programs to run in the background. These programs will be considered on an individual basis and VPS Customers will incur extra charges based on system resources used and operational maintenance needed. If Customer wishes to run background programs please contact 31 Moons.
(f) 31 Moons's VPS accounts are not configured for the purposes of distributing software and/or multimedia products. If Customer wishes to distribute software and/or multimedia files, please contact 31 Moons to make special arrangements.
(g) Multimedia files are defined as any graphics, audio, and video files. 31 Moons shared server accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any web site with disk space usage for storing multimedia files that exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be used for the purposes of distributing and storing an unusual amount of multimedia files.
(h) Any database stored on VPS shall be limited in size to 10% of the total disk space allotted for that particular domain's plan/web hosting account.
3. Exceeding Usage Levels:
If Customer’s use of bandwidth, email addresses, hard drive space, or other services exceeds that allotted for Customer’s current VPs account, 31 Moons will charge Customer for such overage at 31 Moons’s then current rates.
VPS Customers are allotted system resources in accordance with the hosting plan ordered. However, at times more is available on each server than ordered. If a Customer requires loads to spike higher than as ordered, as long as the resources are available on the server at that time, Customer can use them, up to the burstable level. 31 Moons has monitoring systems in place to check the loads on each server and make sure that the servers are not oversold so that Customer will have their ordered resources. A Customer’s burst allotment is not the same thing as the resource allotment. A Customer is not assured constant, sustained utilization of the burst resources. If a Customer’s VPS regularly requires greater resources than the ordered hosting plan, 31 Moons will work with Customer to upgrade to a hosting plan with greater allocated resources.
4. Excluded Support:
31 Moons will not support any of the applications referenced in Section 2 above. In addition, 31 Moons will not support the customers of Customer, provide training to Customer on how to configure or administer the servers, or provide support for HTML programming or any other scripting language.
5. Customer Changes:
Customer may customize the server software. However, if any actual code or configuration modifications made by Customer to the base software provided by 31 Moons results in damage and or malfunction of the server, correction of such damage or malfunction is not covered by 31 Moons standard support. If 31 Moons is needed to fix the software, Customer will be charged for these services at 31 Moons’s standard hourly rate.
6. IP Addresses:
31 Moons will also provide Customer with the number of IP addresses specified in the VPS Hosting Services plan Customer selects. Customer will not own and cannot take any IP addresses with them after the termination of the account.
7. 99% Uptime Guarantee:
8. Maintenance Windows:(a) The VPS Hosting Services servers will be functioning and available 99% of the time in any given month (except during Maintenance Windows (defined below)). Please see our System Availability (http://www.31moons.com/legal-problem-manage.php) specifications reachable via the 31 Moons website. Any 31 Moons breach of this guarantee will be referred to as an “Uptime Breach.”
(b) For every continuous hour a VPS experiences an Uptime Breach, 31 Moons will provide a credit pro-rated to the amount of the total monthly fee paid by Customer to 31 Moons for each hour of downtime (each a “Downtime Credit”). For calculation purposes, the Downtime Credit shall be based on a 720 hour month. Customer’s charges for the following month for basic hosting services, not to exceed in the aggregate 100% of such month’s charges, will be reduced by the amount of the Downtime Credit. Downtime Credits may not be applied against fees for add-on services, and if not completely covered by the following month’s charges, shall not be carried over to a subsequent month.
(c) In order to qualify for a Downtime Credit, Customer must submit a trouble ticket to 31 Moons (http://www.31Moons.com/support) via the Customer’s account or by calling 31 Moons support at (815) 306-0609. The length of each Uptime Breach will be measured from the time the trouble ticket is received and validated by 31 Moons technicians to the time 31 Moons, in its sole discretion, considers the issue resolved.
(d) The total of Downtime Credits given in any one month may never exceed 100% of the charges for basic hosting services for that month.
(e) Downtime Credits may not be issued (and any applicable Downtime Credits will be forfeited) if an account is past due or the account is suspended or cancelled by 31 Moons for violating this Agreement. In addition, Downtime Credits may not be issued if an Uptime Breach arises out of (a) any action taken by Customer or another person authorized to access Customer’s account, (b) the failure of systems, Internet infrastructure, network equipment, power, facilities, connections or services provided by a third party to 31 Moons, or (c) application, software, or operating system failures, denial of service attacks, hacker activity, or other malicious events.
31 Moons “Maintenance Windows” include both scheduled maintenance windows (i.e., Customer receives prior notice) and emergency maintenance windows (i.e., because of immediate threats to 31 Moons’s systems or to Customer’s server Customer receives no prior notice).
9. Limited License:
Customer hereby grants to 31 Moons a limited, royalty-free, non-exclusive license to use, translate, reproduce, publish, distribute, sub-license, exploit, and/or create derivative uses of Customer’s web site and web site content anywhere, in any form, medium, or technology now known or later developed throughout the world for the sole purpose of providing shared server services under this Agreement.
