Policies

This is an agreement between you (“Customer”) and Fisher Technical Services, LLC. (“FTec”), for itself and on behalf of its affiliates regarding your use of FTec’s computer, interactive information, communication and server management services related to hosting one or more internet services (“Services”).

Overview

1.1 General. This Agreement governs the terms and conditions under which FTec makes the Services offered by FTec available. Under this Agreement, you must comply with FTec’s “Acceptable Use Policy,” as updated from time to time by FTec, which can be viewed at www.ftec.net. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY SUBMITTING SUBSCRIBER INFORMATION, REGISTERING, AND ACTIVATING HOSTING SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SUBMIT THE SUBSCRIBER INFORMATION OR ACTIVATE THE HOSTING SERVICE ACCOUNT.

Term

2.1 Term Commencement. This agreement (“Agreement”) becomes effective when Customer inputs subscriber information, registers and activates their account.

2.2 Initial Term. FTec will host an account for Customer, for the Customer’s registered domain name, for the period of time corresponding with the payment plan chosen by the Customer in the registration process (the “Initial Term”).

2.3 Renewal term(s). If Customer wishes to terminate the Services at the end of the Initial Term or any subsequent Renewal Terms, notice of intent to terminate must be given in written form or via customer portal, at least 30 days prior to the termination date. Neither e-mail nor phone notification shall be acceptable. If Customer fails to notify FTec of its intent not to renew, this Agreement will be automatically renewed for a period equal to the Initial Term (“Renewal Term”) at FTec’s then-current rates and charges.

Fees and Payment Terms

3.1 Fees and Expenses. Unless modified in accordance with Section 3.3.  Customer will pay all fees due according to the prices and terms selected during the registration process.

3.2 Payment Terms. FTec reserves the right to require a security deposit prior to provisioning Service. All installation fees and non-recurring charges, along with the first month’s service fees, shall be due and payable: 1) if customer is being billed with their telephone bill, on the due date of such bill; and 2) if other payment arrangements have been made, within 14 days of invoice date. Thereafter, recurring fees will be invoiced on a monthly basis according to FTec’s billing cycle. Accounts that are past due by more than thirty (30) calendar days shall be subject to late fees or immediate interruption of service(s), with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of FTec. Reactivation of the service after termination or cancellation for any reason shall require the payment of additional installation charges and is subject to the availability of facilities. All inquiries regarding payment or your account should be directed to (407) 378-1723 or by opening a request via the customer portal.

3.3 Price Changes. During the initial term of this Agreement, Customer will not be charged an amount greater than the price set for the Services hereunder. FTec, however, reserves the right, without prior notice, after such Initial Term, to change the prices charged to the Customer for the services provided by FTec. Upon renewal, as provided in paragraph 2.2(b) above, the prices charged may be changed to the then prevailing price for the Services.

3.4 Taxes.  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 (hereinafter “Tax”) imposed on, or with respect to, the Services under this Agreement.

3.5 Delinquency. At the sole discretion of FTec, if an account is deemed to be delinquent on a regular basis, FTec may require payment in advance of services in the form of a deposit.

3.6 Default. An account considered to be in default shall have all associated assets, including but not limited to domain names, email and files located in the user’s account, frozen by FTec. If an agreement with the Customer is not reached, FTec may, at its discretion, use said assets in recovering lost expenses due to payment default by user including service costs and legal fees associated with attempts to recover said debt.

3.7 Prepayment. FTec may, at its discretion, require prepayment of services in the case where user’s account activity warrants additional costs (such as additional bandwidth) above and beyond user’s normal usage. In this case, user will be required to prepay an estimate based on current over-usage totals where service will be suspended until payment is received.

3.8 Early Termination. Termination of this contract prior to the length of the term must be received in writing to our corporate offices:  2430 US Highway 27, Suite #330-229, Clermont, FL 34714.  Early termination is effective only when outstanding balances are paid in full.  See Early Contract Termination Charge in Section 9.4.

Customer Obligations

4.1 Warranties of Customer.  Customer represents and warrants that; (i) Customer is not a minor and is legally capable of entering into this Agreement, (ii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other FTec customers’ use of FTec services; (iii) Customer a resident of any country or affiliated with any of organization prohibited to do business within the United States as defined and set forth at: http://www.treas.gov/ofac and http://www.bxa.doc.gov/DPL/denialist.html and (iv) that it will strictly comply with the FTec Acceptable Use Policy, as set forth below, and these Terms and Conditions.

4.2 Compliance with Law and FTec Acceptable Use Policy and Terms and Conditions.  Customer agrees that it has received, read and understands the FTec Acceptable Use Policy. The FTec Acceptable Use Policy contain restrictions on Customer’s and Customer’s users’ online conduct (including prohibitions against unsolicited commercial email) and may contains financial penalties for violations of such restrictions. In the event of Customer fails to comply, Customer agrees to pay the financial penalties in accordance with the FTec Acceptable Use Policy. FTec may change the FTec Acceptable Use Policy upon notice to Customer, which notice may be provided by posting such new FTec Acceptable Use Policy at the FTec Web site www.ftec.net.

4.3 Prohibited Uses. In addition to those matters set forth in the FTec Acceptable Use Policy, Customer shall not post, transmit, re-transmit or store material on or through any of Services which, in the sole judgment of FTec (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, “Persons”) or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer.  Customer agrees to indemnify and hold harmless FTec from any claims resulting from the use of the services which damages Customer or any other party.

4.4 Government Regulations. The 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 which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction the Customer operates or does business.  Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.  Customer shall, upon the request of FTec, provide FTec assurance of Customer’s compliance with those laws.  Customer acknowledges that FTec exercises no control whatsoever over the content of the information passing through Customer’s site(s) and that it is the sole responsibility of Customer to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations and the FTec Acceptable Use Policy.

4.5 IP ADDRESS. IF FTEC ASSIGNS THE CUSTOMER AN INTERNET PROTOCOL ADDRESS IN CONNECTION WITH THE CUSTOMER’S USE OF THE FTEC SERVICES, THE RIGHT TO USE THAT INTERNET PROTOCOL ADDRESS WILL REMAIN WITH AND BELONG ONLY TO FTEC, AND THE CUSTOMER SHALL HAVE NO RIGHT TO USE SUCH INTERNET PROTOCOL ADDRESS EXCEPT AS ALLOWED BY FTEC IN ITS SOLE AND ABSOLUTE DISCRETION.

4.6 Passwords; Account Ownership. The Customer shall be responsible for maintaining security of its password. FTec will not change passwords to any account without proof of identification, which is satisfactory to FTec, which may include written authorization with signature. In the event of any dissolution of a corporation or partnership, divorce or other legal action that includes Customer, Customer understands that FTec will remain neutral and may put the account on hold until final adjudication of the disposition of the domain name by a court with appropriate jurisdiction. Under no circumstances will FTec be liable for any losses incurred by Customer during this time of determination of ownership, or otherwise. The Customer agrees to indemnify and hold harmless FTec from any and all Claims arising from such ownership disputes. In the event of a breach of security through the Customer’s account, the Customer will be liable for any unauthorized use of the FTec services, including any damages resulting there from, until the Customer notifies FTec’s customer service.

4.7 Marketing.  Customer shall not use FTec’s name or any language, pictures or symbols which could, in FTec’s judgment, imply FTec’s identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.

4.8 Taxes.  Customer is responsible for the charging and collecting from its end user customers any and all applicable taxes. If the Customer fails to impose and/or collect any tax from end users or its other retail customers as required herein, then, as between FTec and the Customer, the 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 the Customer has agreed to pay or impose on and/or collect from end users or its other retail customers, the Customer agrees to indemnify and hold harmless FTec for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from FTec due to the failure of the Customer to pay or collect and remit such tax to such authority.

4.9 Audit Rights. FTec reserves the right to audit Customer’s site and services, and the materials comprising the site and services, at any time. If the audit reveals any act or omission which, in FTec’s sole opinion, constitutes a violation of any local, state, federal or foreign law or regulation, FTec may immediately shut down the site, and notify Customer of the action.  Customer agrees that it waives any cause of action or claim it may have against FTec for such action.

4.10 Investigation.  Customer understands that FTec may conduct an investigation into the Customer, Customer’s business, and/or its owners, officers, directors, managers and other principals. Based upon that investigation, FTec reserves the right to refuse to do business with Customer, or to stop doing business with Customer.  Customer agrees to hold FTec harmless for any damages arising out of any form or cause of action, that could arise from FTec’s actions. These audits or investigations will be conducted solely for the FTec’s benefit, and not for the benefit of Customer or any third party.

4.11 No Third Party Beneficiaries. FTec and the Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of the Customer. The Customer agrees that it shall specifically inform its customers that they are not third party beneficiaries of this Agreement.

4.12 Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, FTec will have the right, in its sole reasonable discretion, to suspend immediately any related Services if deemed reasonably necessary by FTec to prevent any harm to FTec and its business. FTec will provide notice and opportunity to cure if practicable depending on the nature of the breach. Once cured, FTec will restore the Service(s) as soon as practical.

4.13 Termination for Violation. Violations of these or any other provisions of this Agreement may result in termination of the services provided by FTec in its discretion, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of FTec based upon the severity of the violation. FTec reserves the right to refuse service if any of the content within, or any links from, the Customer’s website is deemed prohibited unlawful, unlicensed, illegal, misleading, or obscene, or is otherwise in breach of FTec’s then current “Acceptable Use Policy” in FTec’s sole discretion. If FTec terminates the services being provided to the Customer due to a violation of the Acceptable Use Policy, such termination shall be without refund Notwithstanding anything in this Agreement, the content of the Customer’s website is the sole responsibility of the Customer. The Customer agrees to indemnify and hold harmless FTec from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney’s fees, costs, and other expenses incurred by FTec, (collectively, “Claims”) related to or in connection with the content of the Customer’s website. The terms of this Section will survive any termination of this Agreement. If the Customer sells or resells advertising or web space to a third party, then the Customer shall be responsible for the contents of such advertising and the actions of such third party. FTec has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current FTec “Acceptable Use Policy”. The e-mail distribution by the Customer of “SPAM”, “JUNK MAIL”, or “UNSOLICITED COMMERCIAL E-MAIL”, is expressly prohibited. If the Customer refuses to remove any advertising or other third party content deemed objectionable by FTec, FTec may terminate the services being provided to the Customer, without refund.

4.16 Customer Backups. FTec does not, unless otherwise specified by written contract, provide backup services for Customer’s data. It is the sole responsibility of the Customer to maintain backups of the data stored on any FTec server including, but not limited to electronic email, web documents or contents of Customer’s home directory.

FTec Representations and Warranties

5.1 Authority and Performance of FTec. FTec represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable U.S. laws or regulations, or cause a breach of any agreements with any third parties. FTec warrants that it is either the owner or licensee of any software involved herein and all documentation related to any such software, and has the right and power to deliver and license the software and all documentation related to the software.

5.2 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. FTEC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FTEC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. FTEC DOES NOT WARRANT THAT THE SOFTWARE, INCLUDING SECURITY SOFTWARE, OPERATES WITHOUT ERROR OR WILL PREVENT THIRD PARTY HACKING OR ACCESS TO CUSTOMER’S NETWORKS. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 5, CUSTOMER’S SOLE REMEDY IS TERMINATION PURSUANT TO SECTION 9 OF THE AGREEMENT.

Limitation of Liability

6.1 Service Interruption. FTec will use its best efforts to maintain a full time Internet presence for the Customer. The Customer hereby acknowledges that the network may, at various time intervals, be down due, but not limited to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall FTec be liable to the Customer for any damages resulting from or related to any failure or delay of FTec in providing access to the Internet under this Agreement.

6.2 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. FTEC DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM FTEC’s NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH FTEC WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, FTEC CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, FTEC DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

6.3 Disclaimer of Actions Caused by and/or Under the Control of Customer. FTEC SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, REPAIRS OR MODIFICATIONS NECESSITATED BY THE CUSTOMER’S ALTERATION OF THE OPERATING SYSTEM, INCLUDING ANY AND ALL OPERATIONAL ISSUES WHICH MAY ARISE AS A RESULT OF THE ADDITION OF SOFTWARE BY CUSTOMER. FTEC SHALL NOT BE LIABLE FOR ANY DELAY IN PROVIDING OR ANY FAILURE TO PROVIDE SERVICES IF SUCH DELAY IS CAUSED BY FORCES BEYOND THE REASONABLE CONTROL OF FTEC.

6.4 CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL FTEC BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. THE AGGREGATE, TOTAL LIABILITY OF FTEC UNDER THIS AGREEMENT, IF ANY, SHALL IN NO EVENT OR CIRCUMSTANCE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CUSTOMER HEREUNDER. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

6.5 Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that FTec has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

Indemnification

7.1 Indemnification. The Customer agrees to indemnify and hold FTec harmless from any and all claims or causes of action of any kind or nature, arising out of or related to Customer’s use of products and services purchased from or provided by the FTec, as well as all claims or causes of action of any kind or nature brought by any third party, or any of Customer’s own customers. The Customer and FTec will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement.

Intellectual Property

8.1 Ownership. Except for the rights expressly granted herein, this Agreement does not transfer from FTec to Customer any FTec developed technology, and all right, title and interest in and to such technology will remain solely with FTec. Except for the rights expressly granted herein, this Agreement does not transfer from Customer to FTec any Customer developed technology, and all right, title and interest in and to such technology will remain solely with Customer. FTec and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party.

8.2 General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, FTec will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of FTec.

Termination

9.1 Termination For Cause. Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from FTec; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

9.2 Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms. In the case of Customer’s termination or cancellation without cause, Customer shall be immediately liable to FTec for all rates and charges through the Term, less FTec’s reasonable avoided costs.

9.3 Effect of Termination. Upon the effective date of expiration or earlier termination of this Agreement, (a) FTec will immediately cease providing the Services; (b) any and all payment obligations of Customer under this Agreement will become due immediately, including but not limited to an “Early Termination Charge”; and (c) within thirty (30) days after such expiration or termination, each party will return all Confidential Information of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. If Customer does not pay all amounts due to FTec and remove such property from FTec premises or storage within thirty (30) days of such FTec request, FTec may liquidate the property in any reasonable manner, without being liable for related damages.  If Customer fails to comply with this paragraph, Customer shall be responsible for all damages and costs incurred by FTec, and during any period of holdover, shall also pay FTec monthly Service Fees equal to two-hundred percent (200%) of the monthly Service Fees in effect immediately preceding such holdover. 

9.4 Early Contract Termination Charge. The term of the contract is as defined on the Order Form or Quote provided to the Customer.  In the case of early termination where a written notice is received by FTec, a charge will be calculated as an amount equal to seventy-five percent (75%) of the aggregate of (i) all remaining Recurring charges until the end of the Term or (ii) twelve (12) months, whichever is lesser.  Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred or residual fees due to FTec or its affiliates by FTec as a result of an early termination, and is not a penalty. Notwithstanding the foregoing, FTec may seek all other available remedies in law and in equity in the case of Customer’s default resulting from any reason, other than nonpayment.

Miscellaneous Provisions

10.1 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inaction’s of FTec), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If FTec is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, the Customer may cancel the Service(s), but there shall be no liability on the part of FTec.

10.2 Assignment. The Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of FTec, and any attempted assignment or delegation without such consent will be void. FTec may assign this Agreement in whole or part. FTec also may delegate the performance of certain Services to third parties, including FTec’s Affiliates. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

10.3 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the Customer as listed on the Statement of Work and, if to FTec, at: Fisher Technical Services, LLC, 2430 US Highway 27, Suite 330-229, Clermont, Florida 34714, or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.

10.4 Relationship of Parties. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between FTec and the Customer. Neither FTec nor the Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

10.5 Governing Law. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Florida (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods.

10.6 Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

10.7 Entire Agreement; Counterparts; Originals. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.