Terms of Service Agreement
The terms and conditions set forth herein constitute full and complete agreement between you ("you", "your") and Ascribe Data Systems ("us", "we", "Ascribe Data"), whose business address is 1382 Frank Street, Honolulu, Hawaii 96816. By using the Ascribe Data website, web hosting services, support services, and the Ascribe Software, you agree to be bound by the terms of this Agreement.
1. DEFINITION OF SERVICE.
For purposes of this Agreement the term "Service" shall collectively mean the web hosting service ("Web Hosting") and hosted web application service for the Ascribe Membership and Website Management Software ("Ascribe Software") (as defined in §5 below), technical support, email and other services provided by Ascribe Data to you as defined herein.
2. AUTHORIZED USER, USE, AND RESPONSIBILITIES.
2.1 You acknowledge and agree that you have the legal authority to enter into this agreement and affirm that the information you supply to us is correct and complete. You understand that Ascribe Data relies on the information you supply and that providing false or incorrect information may result in Service provisioning or delivery delays or the suspension or termination of your Service. You agree to promptly notify Ascribe Data whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).
2.2 Ascribe Data will provide you with usernames and passwords to enable you to access the Service. You agree to protect your usernames and to pay for all activity associated with it.
2.3 You agree that you are responsible for all use on your account, including any email accounts, ftp accounts, secured shell access, database access, internet web access, and any other activity used in conjuction with the Service. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, with or without your permission.
2.4 You may not resell the Service or engage in similar activities that constitute resale (commercial or non-commercial), as determined solely by Ascribe Data.
2.5 Ascribe Data reserves the right to audit connections electronically to enforce these or any other provision of the Agreement.
We may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service and prices) by providing notice to you as set forth in §14. below. Such revisions shall be effective thirty (30) days after providing notice. By continuing to use the Service after revisions are in effect, you accept and agree to the revisions and to abide by them. If you do not agree to the revision(s), you must terminate your Service immediately.
4. PRICING AND PAYMENT.
4.1 Prices and Fees. Ascribe Data charges Account Set-Up Fees, Service Fees and Miscellaneous Fees where applicable. All such fees are subject to change with 30 days notice. Monthly fees for the Service are as specified on the Ascribe Data Systems LLC website. You agree to pay the charges applicable to your selected Service plan. You also agree to pay all other charges, including but not limited to a) applicable taxes, b) surcharges (set forth in §5.7 and §5.8), c) late and recovery fees (set forth in §4.3 and §9.4), d) activation fees, e) reactivation fees (set forth in §9.4), and f) additional services charges (set forth in §5.6). The taxes, fees and other charges detailed in this section a)-c) and f) may vary on a monthly basis; any variations will be reflected in your monthly charge. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, charges due to insufficient funds and late fees. Activation fees and other additional service fees, if applicable, will be included in your first month's bill. Monthly recurring charges will be billed one month in advance; usage charges will be billed in arrears, if applicable. Ascribe Data or its agent will bill you directly. Ascribe Data does not accept debit cards for payment of any charges or fees. All fees must be paid in US Dollars.
4.2 Price Changes. Ascribe Data reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the existing rights and responsibilities of each party. Ascribe Data reserves the right to change the rate charged for any such fee under this Agreement with 30 days notice.
4.2 Discontinuation of Service for Nonpayment. Service to you may be interrupted or discontinued without notice at any time if you fail to make payments when due. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of Ascribe Data under §9 herein.
4.3 Late Fees. If any portion of your bill is not paid by the due date, Ascribe Data may charge you a late fee on unpaid balances and may also terminate or suspend your Service with notice after sixty (60) days. The late fee will be the greater of USD $20 or ten percent of the balance due. In the event Ascribe Data utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
4.4 Refunds. Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this agreement under §9. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date. Ascribe Data may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. There will be no refunds of Domain Service Fees. Fees paid for certain additional services, including but not limited to services such as additional disk space, data transfer bandwidth, or Ascribe record limit allotments, are also not refundable. There shall be no refunds for unused data transfer volume.
5.1 Ascribe Software
5.1.1 Features. Ascribe Data shall provide to you an installation of the Ascribe Software with the following features:
- secured, password-protected, browser based application;
- administrative area for use by staff and volunteers to manage data relevant to persons, groups and the website;
- customizable start page for users in the administrative area;
- person and household contact database;
- email campaign module for sending personalized HTML emails to an unlimited number of recipients;
- label and letter mail merge output in PDF format;
- goal and follow-up module with fully configurable sequences of steps (e.g., welcome letters, follow-up phone calls);
- praise report and prayer request modules
- content management system to administer the website, with the following features:
- manage unlimited pages using an word processor-like web page editor
- unlimited news feeds which are collections of categorized news articles
- events calendar
- frequently asked questions
- photo gallery
- comprehensive groups module
- groups database
- group member database
- email campaigns to group members
- label and letter mail merges for group members
- log notes for group
- group-specific discipleship module
- group "to do" task management
- group-specific mini-website with the following content management features: unlimited web pages, unlimited news feeds, events calendar, announcements, photo gallery, and custom web forms
- financial module to track contributions
- customizable support forms
- file management archive
- multi-format data export for most modules;
- user-friendly person data import
- configurable text labels for all fields, messages and descriptions
- configurable menu bar in the administrative area
5.1.2 The number of database records, authorized users and files managed in this Ascribe Software installation is limited only by the disk server space which is included in the Service as set forth in §5.2.
5.1.3 The encrypted source code for the Ascribe Software is non-transferable and will be confined for use only in conjunction with a single IP address to be assigned at the time of procurement.
5.2 Web Hosting.
5.2.1 Features. Ascribe Data shall provide to you a web hosting account as specified in your selected service plan.
5.2.2 Email and Email Messaging Service. Use of Ascribe Data email message service ("EMS") is subject to Ascribe Data's email and anti-spam policies, including limitations on the number and/or size of email that may be sent during a given time period, or the number of recipients of a particular email. In the event of a breach by you of the terms and conditions applicable to EMS, Ascribe Data reserves the right to terminate your EMS immediately without notice. Ascribe Data also reserves the right to delete all data, files, and other information stored on or for your EMS upon termination of your Service.
5.2.3 Blocking of Bulk Email ("SPAM"). Ascribe Data reserves the right to block email from any open mail relay, IP address or other source that Ascribe Data believes are being used to send unsolicited commercial or bulk email, commonly known as spam.
5.2.4 Data Transfer Volume. A data-transfer volume of 15 or more gigabytes per month is included in the Service. The utilized data-transfer volume is calculated on the basis of all data-transfers that take place during any given calendar month (including but not limited to downloads, email, uploads and website visits). For purposes of this Agreement, 1 Gigabyte equals 1000 Megabytes, 1 Megabyte equals 1000 Kilobytes and 1 Kilobyte equals 1000 Bytes.
5.3 Account Activation. Provisioning of the Service will commence as soon as is practicable after the execution of this Agreement and receipt of the first month's payment of fees.
5.4 Technical Support. For purposes of this Agreement the term "Technical Support" shall specifically mean the provision of help to your Administrative Users to solve inoperability problems such as software bugs or server downtime relevant to the Ascribe Software and Web Hosting. You agree to limit Administrative Users to your representatives who are assigned the responsibility to setup the Ascribe Software and Web Hosting for use by the other users. Ascribe Data shall provide technical support to your Administrative Users via Ascribe Data's secured online support help desk accessible on our website at http://www.ascribedata.com using your User ID or by sending an email to email@example.com. Technical Support is covered at no additional charge under your monthly fee stated in §4.1. Should any requests for support be deemed, at Ascribe Data's sole discretion, to not qualify as a Technical Support, support rendered in response to said request will be considered as Consulting as set forth in §5.5, and may be billed according to rates set forth in §5.6.
5.5 Training and Consulting. Telephone or in-person support or consulting, data conversion services or custom programming is not covered by your monthly fee stated in §4.1. For the purposes of this Agreement the term "Training" shall refer to the process of preparing a person to accurately perform specific tasks in the Ascribe Software. The term "Consulting" shall refer to the process of interviewing your organizational representatives and suggesting the most effective use of the Ascribe Software to meet your organization's operational needs and also the provision of data conversion and custom programming services. Training and Consulting may be requested on a per incident or monthly contract basis and billed according to the fee schedule set forth in §5.6.
5.6 Additional Services Fee Schedule. Ascribe Software and Web Hosting services which are not specifically described in the sections above are not included the monthly fee set forth in §4.1 and may be provided at your request for the following fees:
- Domain names: USD $10.95 per year
- Hourly Consulting USD $125 per hour
5.7 Per Incident Services. Hourly Telephone Support, Hourly In-Person Training, and Consultation, Data Conversion and Custom Programming, hereinafter referred to as "Per Incident Services", will be provided at the rates stated in §5.6. Hourly Telephone Support and Consultation, Data Conversion and Custom Programming will be billed in one-quarter hour increments with a one-quarter hour minimum charge. In-Person Training will be provided the rate stated in §5.6 and billed in one hour increments with a one hour minimum charge, plus any appropriate travel expenses. Hourly Per Incident Service fees will be billed at the end of each month and will be due thirty (30) days following the end of that month. A fifty percent (50%) additional surcharge will be incurred for Per Incident Services requested to be performed outside normal business hours (i.e., times other than 8am-5pm Japan Standard Time, Monday through Friday).
5.8 Monthly Contract Services. Training and Consulting services requested on a monthly contract basis shall be billed each month for the upcoming Monthly Training or Consulting Service Contract Term, as defined in §9.1. Monthly rates are only valid when services are requested for three months or longer, otherwise hourly per incident rates will apply. Service hours included in the contracted service left unused by the end of the Monthly Training or Consulting Service Contract Term are non-refundable and cannot be accrued or carried over to the next Monthly Training or Consulting Service Contract Term. A surcharge of fifty percent (50%) of hourly Per Incident Service rates will be incurred for monthly contract services requested to be performed outside normal business hours (i.e., times other than 8am-5pm Japan Time, Monday through Friday).
6. ACCEPTABLE USE.
6.1. Ascribe Data strictly enforces compliance with its acceptable use terms under this §6. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under §9 herein. You agree that:
6.1.1. you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
6.1.2. you will not engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;
6.1.3. you will not take any action which encourages or consists of any threat of harm of any kind to any person or property;
6.1.4. you will not transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be "spamming" or "Mail Bombing," and you will not carry abusive network activity (including, but not limited to, denial of service attacks such as pingbombing, email bombing, "smurf", "winnuke", "land", "teardrop", etc.) or otherwise compromise the security of hosts or networks;
6.1.5. you agree not to make any illegal or otherwise prohibited communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum;
6.1.6. you agree not to make or attempt any unauthorized access to any Ascribe Data website or the website of any Ascribe Data customer;
6.1.7. you agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
6.1.8. you agree not to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, or profane information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
6.1.9. you agree not to undertake any intentional action which is harmful or potentially harmful to the Ascribe Data server structure.
6.2. In order to maintain the data storage and transfer volume restrictions set forth in §5.2.1, you agree to check all of your email accounts in regular intervals and to download the email stored therein. Ascribe Data may, should the capacity of your email boxes be exceeded at any time, return all subsequently received emails to the senders without notice to you.
6.3. You agree to design your websites in such a manner as to avoid overloading of the Ascribe Data Servers, by limiting the use of CGI-Scripts that require overly high processor capacity, and to use good judgment to provide a website that is designed in a technically competent manner. Ascribe Data has the right, should your website be the cause of interruptions in Ascribe Data's ability to provide its services to other customers, to temporarily disable access to your website. In case Ascribe Data takes such a step, you will be informed thereof as soon as is practicable and Ascribe Data may work with you to remove the condition that led to the suspension.
7.1 Pursuant to the terms and conditions set forth herein, Ascribe Data grants you a non-exclusive, limited, non-transferable license to use the Ascribe Software as a hosted service with Ascribe Data.
7.2 You may not rent, lease, lend, or in any way distribute or transfer any rights in this Agreement to third parties without Ascribe Data's written approval and subject to written agreement by the recipient of the terms of this Agreement.
7.3 You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market, defeat license encryption mechanisms or otherwise dispose of any portion of the Ascribe Software or any copies thereof and not to assist any third party in doing so except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
8. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY.
8.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Ascribe Data including but not limited to the Ascribe Software, and Ascribe Data customer service and maintenance tools. You acknowledge that all right and title to any such Ascribe Data intellectual property shall remain the sole property of Ascribe Data and that you have no right, title or interest therein. You further agree not to provide access to the Ascribe Data services to any third party, except when complying with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. Any and all right or title to any engineering, coding, programming or customer service work or other modification of the Ascribe Data Services shall also remain the sole property or Ascribe Data.
8.2 During the term of this agreement you may have access to certain information and materials relating to the Ascribe Data business, customers, software technology and marketing which Ascribe Data treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of Ascribe Data; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
8.3 For purposes of this §8, Confidential Information also includes passwords and access codes.
9. TERM AND TERMINATION.
9.1 Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement and shall continue, subject to the terms of this §9, until terminated by either party as permitted by this Agreement. Billing for your Service will automatically begin on the date provisioning of your account is complete and ready for use ("Service Ready Date"). The initial term of this Agreement shall be one (1) month with automatic renewal for a subsequent additional month after the expiration of the initial term (each such month a "Contract Term"). Ascribe Data reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month.
9.2 Termination of Service. This agreement and all of its terms shall remain in full force and effect until terminated. Either you or Ascribe Data may terminate this Agreement without cause by giving notice to the other in accordance with the notice provision set forth at §14 below. Termination by you will be effective upon your notice to Ascribe Data. Activation or set-up fees paid at the initiation of your Service, if any, are not refundable, except during the thirty (30) day money-back guarantee period. Termination by Ascribe Data shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in this Agreement. In the event of termination by Ascribe Data, for any reason, you will be required to pay the remaining balance of the charges applicable to your Service through the effective date of termination. If, in the sole discretion of Ascribe Data: (a) any payment for Ascribe Data Services is more than sixty (60) days overdue; (b) any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party; (c) your use of the Service is prohibited by law or is maliciously disruptive to, adversely impacts or causes a malfunction to the Service, Ascribe Data's network, or the use and enjoyment of other users; (d) Ascribe Data receives an order from a court to terminate your service; or (e) if Ascribe Data ceases to offer the Service pursuant to §15.2, then Ascribe Data at its sole election may terminate or suspend your Service immediately. For termination in accordance with this §9.2, you shall be liable for the applicable fees set forth in §4.1 and/or §5.6 for the current contract term.
9.3 Suspension of Service. Suspension hereunder shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. Ascribe Data reserves the right to terminate your account forthwith should any material breach of any of the provisions of the Acceptable Use Policy, described in the foregoing §6, is not cured within ten (10) days of notifying you of such breach.
9.4 Terminated Account. Accounts that are sixty (60) days past due shall be automatically suspended and all past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, you are liable for costs of collection including but not limited to attorney's fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a reactivation fee of $100.00, which fee shall be paid by you prior to reactivation of the account. Ascribe Data, in its sole discretion, may refuse to accept your application for renewal or re-subscription following a termination or suspension of your use of the Service.
9.5 Regulatory Compliance. In the event there is a ruling, regulation, or order issued by a judicial, legislative or regulatory body that causes Ascribe Data to believe that this Agreement may be in conflict with such rules, regulations, and orders, Ascribe Data may terminate or modify your Service and/or this Agreement immediately without notice.
9.6 Data Deletion upon Termination. Termination shall include the removal of any and all of your information from the Ascribe Data servers. Such information or data may or may not be made available to you by Ascribe Data after any such termination.
Ascribe Data will treat your personal information, as well as any and all data stored by you via its software in our servers, with the utmost respect and privacy as the sole property of you. Your data will be not be viewed, analyzed or copied by Ascribe Data, its employees or agents except when, including but not limited to, responding to technical support requests, providing required server maintenance, investigating suspected breaches of the Acceptable Use Policy set forth in §6, and complying with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. In no circumstances, will your information be sold or otherwise released to third parties for marketing purposes.
11. MANAGEMENT OF YOUR COMPUTERS, NETWORKS AND DATA.
11.1 System Management and Service Performance. You are solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Service and to operate your computer(s).
11.2 Data Management and Responsibility. You are responsible for management of your information, including but not limited to back-up and restoration of data and erasing data from disk space you control. Ascribe Data is not responsible for the loss of your data or for the back-up or restoration of your data regardless of whether this data is maintained on our servers or your computer or server.
12. WARRANTIES AND LIMITATION OF LIABILITY.
12.1 Ascribe Data makes every reasonable effort to maintain operation of the Ascribe Data Services. However because many events and circumstances are beyond the control of Ascribe Data, Ascribe Data does not in any way warrant or otherwise guarantee the availability of the Ascribe Data system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Ascribe Data. Ascribe Data may, at its sole discretion, limit or deny access to its servers, if, in the judgment of Ascribe Data, such limitations or denials of access are required to the assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the Ascribe Data servers.
12.2 YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, ASCRIBE DATA (AND ITS THIRD PARTY SUPPLIERS AND LICENSORS) DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY ASCRIBE DATA SYSTEMS OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF ASCRIBE DATA SYSTEMS TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET GENERALLY.
12.2 Do not use the service in any high risk activities where damage or injury to person, property, environment, or business may result if an error occurs.
12.3 In no event shall Ascribe Data (or its officers, employees, parent, subsidiaries, or affiliates), its providers or suppliers be liable for: (a) any direct, indirect, special, consequential or incidental damages, including without limitation, lost profits or loss of revenue or damage to data arising out of the use, partial use or inability to use the service, regardless of the type of claim or the nature of the cause of action, including without limitation, those arising under contract, tort, negligence or strict liability, even if Ascribe Data has been advised of the possibility of such claim or damages, or (b) any claims against you by any other party.
12.4 All limitations and disclaimers stated in this §12 also apply to Ascribe Data's third party licensors, providers and suppliers, as third party beneficiaries of this agreement.
12.5 Any rights or limits stated herein are the maximum for which Ascribe Data (and its officers, employees, parent, subsidiaries, and affiliates), Ascribe Data's third party licensors, providers and suppliers, are collectively responsible.
12.6 The remedies expressly set forth in this agreement are your sole and exclusive remedies. You may have additional rights under certain laws (such as consumer laws), which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply, our exclusions or limitations may not apply to you.
12.7 Ascribe Data reserves the right to pursue any and all legal and equitable claims against you pertaining to your use or misuse of the service or for your breach of the agreement (including any policies relating to the service.)
13.1 You agree to fully defend and indemnify and hold harmless Ascribe Data of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Ascribe Data in any way related to your use of the Ascribe Data Services or any portion thereof.
13.2 You agree to fully defend and indemnify and hold harmless Ascribe Data of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Ascribe Data Services or any portion thereof.
13.3 You agree that upon the assignment of your User ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your User ID and / or your password. You further agree to defend and indemnify and hold harmless Ascribe Data of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to your disclosure of your confidential User ID and Password information.
14.1 Notices required under this Agreement by you to Ascribe Data shall be deemed given when a support request is submitted via Ascribe Data's secured online support help desk accessible on our website at http://www.ascribedata.com using your User ID. Notices by Ascribe Data to you shall be deemed given: (a) when sent to your email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your place of business, as applicable.
14.2 With regard to electronic communications, you and Ascribe Data further agree that: (a) the User ID of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
15. GENERAL PROVISIONS.
15.1 All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including by way of illustration and not limitation, those clauses relating to Software Licenses, Warranties and Limitation of Liability, and Indemnification, shall survive such termination, cancellation or expiration.
15.2. FORCE MAJEURE / WITHDRAWAL FROM BUSINESS.
15.2.1 Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, fires, floods, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The excused party shall make all reasonable effort to notify the other party of the cause of the delay and the estimated date of its resolution, and continue to provide such notice each day that the delay persists or as reasonably often as is possible.
15.2.2 In addition to any event of force majeure as described in the foregoing paragraph, Ascribe Data may also terminate this Agreement in the event that Ascribe Data elects, at its sole discretion, to cease doing business for economic reasons or for any other reason whatsoever. Customers who, at the time Ascribe Data ceases doing business, are taking advantage of any Ascribe Data offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the "Extended Services"), may not recover any damages from Ascribe Data (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Extended Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any Ascribe Data offer of Extended Services. Customers receiving Extended Services at the time of cessation of business shall be entitled to a reimbursement of their pre-paid service fees, if any, except for Domain Services Fees, which are in always non-refundable as provided for elsewhere herein.
15.3 Assignment. This agreement and the rights hereunder is not assignable or transferable except that Ascribe Data may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Ascribe Data, or to any affiliated company or successor in interest of Ascribe Data. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by Ascribe Data to any other party, including to any affiliated company or successor in interest of Ascribe Data, you have the right to terminate this Agreement by giving notice thereof in writing to Ascribe Data and any such termination shall become effective thirty (30) days after the receipt of such notice by Ascribe Data.
15.4 No Agency. Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between Ascribe Data and you.
15.5 Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
15.6 You and Ascribe Data agree that the substantive laws of the State of Hawaii, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. You and Ascribe Data consent to the exclusive personal jurisdiction of and venue in a court located in Honolulu, Hawaii for any suits or causes of action connected in any way, directly or indirectly, to the subject matter of this agreement or to the Service. Except as otherwise required by law, including Hawaii laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
15.7 This Agreement constitutes the entire agreement between you and Ascribe Data with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgments or other documents, written or electronic, are void.
The information contained in this web site is subject to change without notice.
Copyright © 2004-2014 Ascribe Data Systems LLC. All rights reserved.
Ascribe Data Systems LLC, Honolulu, Hawaii 96816, USA.
Updated on February 19, 2014