Last Updated: 2nd Nov. 2016
FissionBlue Creative, a sole-proprietorship with its principal place of business at 22821 Medina Lane Unit A, Cupertino CA 95014, provides managed VPS hosting and related services (the “Services”).
These Terms of Service (TOS) outline the guidelines for using Our Services, and govern access and use by visitors to our website, our customers and end users (collectively, “End Users”). Please read them carefully and ensure that you understand and agree to all its terms.
Our goal and responsibility is to protect each End User and provide them with the best service possible.
Use of this Website
BY ACCESSING OR USING THIS WEBSITE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THESE TERMS OF SERVICE.
By using Our Services, You as an End User must agree to indemnify and hold Us harmless from any claims resulting from the use of the Our Services which harms any party or any third-party.
We will, in our sole and absolute discretion, be the sole arbiter as to what constitutes any violations of this TOS, and We reserve the right to deactivate, disable, remove or take any other action we deem reasonable and appropriate against any website at any time for any reason.
Please email [email protected] with any questions regarding this TOS.
Our Services may be used for lawful purposes only. Transmission, storage, collection, or presentation of any information, data or material in violation of any law or statute in the United States, or Your jurisdiction, is strictly prohibited. This prohibition includes, but is not limited to: copyrighted material that you neither own nor have permission to use, material we judge to be threatening or obscene, or material protected by trade secret and other statute.
Pornography and sex-related merchandising are prohibited from Our Services. This includes websites that may infer sexual content, or Link to adult content elsewhere. This is also true for websites that promote any illegal activity or content that may be damaging to Us, Our Services Our reputation, or any other service on the Internet.
Examples of unacceptable content or use of Our Services
- Pirated software
- Bulk Email related products
- Hacking/cracking related websites
- Warez and/or copyrighted MP3s
- Material deemed illegal under US law
- Websites containing or linking to material that may be considered detrimental to the public health, safety, or welfare. (Such as, but not limited to: Anarchists Cookbook, bomb making, weapon information, or anything else that may be considered detrimental, illegal or terrorist).
We will respond to all reports of infringement that are provided in accordance with the Digital Millennium Copyright Act and any other applicable copyright laws. Notices of infringement that do not comply with this act will not be processed. We will act in accordance with the DMCA when handling infringement reports.
DMCA Notices. Please send valid DMCA Notices via email to [email protected]
System Resource Usage
If We determine an account is utilizing an unacceptable amount of system resources, We may temporarily deactivate the account in question. If We deem necessary, an eviction notice may be sent to the End User of an offending account providing them with seven (7) days in which to either upgrade to a higher plan or move off our Services to another provider. This only occurs in extreme cases; and We will assist End Users prior to this option.
We perform weekly backups on our platform and keep those backups for up to 4 weeks; however, these backups are for disaster recovery and Our administrative purposes only, and are in NO WAY GUARANTEED! End Users are responsible for maintaining their own backups on their own personal computers. We do NOT provide any sort of compensation for lost or incomplete data in the event that backups do not function properly (even if the malfunction was due to negligence on Our part). We will do Our best to ensure complete and accurate backups, but we specifically disclaim any responsibility for this duty. We make no guarantees about the availability of backups.
Unsolicited Email (SPAM)
SPAMing, or the sending of unsolicited email, from Our servers or using a return email address that is maintained on one of Our servers is STRICTLY prohibited. Using SPAM to advertise a website hosted on Our platform also constitutes as a violation of this provision. Websites found to be in violation of our SPAM policies will be immediately deactivated without notice.
Help us STOP SPAM! Please email Our abuse department at [email protected] immediately to report a violation of our SPAM policies.
Abuse to Our Support Team
We always treat our End Users with the utmost respect. In return, We expect the same from you. We reserve the right to terminate an account, if Our staff feels an End User is consistently addressing them in a demeaning or rude manner.
Abuse to Our Networks, Servers and Systems
Any attempts to undermine or cause harm to Our servers or End Users is strictly prohibited.
Payment and Invoicing
End Users shall pay Us monthly in advance the amount agreed for the Services, which shall have been sent via a confirmation letter in e-mail at the time the End User requests and contracts for the Services, which shall confirm the fees payable to Us. Thereafter, Client shall receive a monthly billing statement for the upcoming month. The monthly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days’ notice (as provided herein).
You are responsible for all activities and charges resulting from Your use of the Services, and you agree to pay all fees, bandwidth charges, surcharges, and other charges incurred by You and set forth in our invoice.
In the event of a breach of security, You will remain liable for any unauthorized use (and excessive use) of the Services until You notify Us by sending an email with account information to [email protected]
We reserve the right to change fees, surcharges, monthly membership fees or to institute new fees at any time. In addition, We may institute special trial offers, from time to time, that shall be reflected in the confirmation letter We send to You when you initially sign up for Our Services.
All Services renew automatically. If We do not receive full payment within three (3) days of invoice date, a late charge equal to 5% per month or highest amount allowed by law per month may be added to Your bill and shall be due and payable. You will also be responsible for all attorney and collection fees arising from Our efforts to collect any unpaid balances, and We reserve the right to suspend or terminate Your account immediately without further notice if we do not receive payment within seven (7) days of it being due.
Cancellations and Terminations
Cancellations are processed by our Billing & Support department. To cancel an account, a cancellation request may be submitted to [email protected] with the subject line “Cancellation”. The following steps are required when completing a cancellation request:
- Subscription cancellation via “My Account” by logging on our billing website
- Verification that you have downloaded a backup of all necessary files
- Sender’s email address must match the one initially used to purchase services
The above information is required for the protection of all End Users to ensure only account owners are able to cancel accounts.
No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this TOS in accordance with its terms.
Survival. Those provisions that by their nature should be deemed to survive this TOS shall so survive termination of this TOS.
IP Address(es). Upon expiration, cancellation or termination of this Agreement, You shall relinquish any Internet protocol (“IP”) numbers, address or address blocks assigned to You by Us or our network services supplier (but not the URL or top level domain connected therewith). We reserve, in our sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
We have no refund policy. On a case-by-case basis, however, and at Our sole discretion, We may award a pro-rated refund to an End User.
Service credits issued to accounts are not eligible for refund and will remain on the account for two (2) years after the last hosting account is canceled. If the service credit is not utilized within that time frame, said service credit is forfeited and You hereby agree to release Us from all liability for use of such service credits.
Our Rights and Responsibilities
Support. We will provide You with a reasonable level of technical support via email or through our website’s ticketing system for the term of this Agreement.
Other Work. We have the right to perform and license products to others during the term of this Agreement. We may elect to electronically monitor the Services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate the Services and protect its End Users.
Your Rights and Responsibilities
Authority. You represent and warrant that (i) You are at least eighteen (18) years of age, (ii) possess the legal right and ability to enter into this Agreement, and (iii) the performance of Your obligations hereunder and the use of the Services will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third-parties or unreasonably interfere with other End Users.
Assumption of Risk. You hereby agree to assume all risks related to processing of transactions related to electronic commerce.
Accurate Information. You agree to provide Us with accurate, complete and updated information required by Our signup process, including your proper and accurate legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Furthermore, you hereby agree to notify Us within thirty (30) days of any change in Your information.
Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, We will have the right, in our sole discretion, to immediately suspend or terminate any Services We provide you.
Fees and Expenses. You agree to be responsible for payment of all costs, fees and expenses assessed by third-parties in the course of using Our Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
Third-Party Software. Third-party software available through the Services may be governed by separate End User licenses. By using Our Services and any third-party software, you agree to be bound by the terms of such End User licenses regarding the applicable third-party software. You hereby consent and authorize Us to delegate your personally identifying information you provided to Us to Our third-party service provider(s) as We deems necessary or appropriate to provide the applicable Services. You shall agree that the terms and conditions of this TOS, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this TOS, inure to the benefit of such third-party service providers and such third-party service providers are deemed to be third-party beneficiaries of this TOS, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. You also agree that all reference to Us within this TOS and any incorporated terms are also deemed to include, where applicable, Our agents, such as the third-party service providers.
Management of Website. You will be solely responsible for all content available on or through your website hosted with Us, and you shall at all times be subject to the terms of this TOS.
Compliance with Laws. You agree that you will use the Our Services only for lawful purposes and in accordance with this TOS. We may change this TOS, with notice or without notice, which notice may be provided by posting such new TOS at Our website. You may request a current copy of this TOS by emailing a request to Us at [email protected] You represent and warrant that you have received, read and understand the current version of Our TOS.
Limitation of Liability, No Other Warranty and Legal Disclaimer
Limitation of Liability. In the event that we make any limited guarantees, such limited guarantees are null and void if you fail to abide by this TOS. THE MAXIMUM LIABILITY FOR US TO YOU FOR DAMAGES RELATING TO OUR FAILURE TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO REIMBURSEMENT OF ANY FEES PAID BY YOU TO US. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY FOR US TO YOU FOR DAMAGES FOR ANY AND ALL OTHER CAUSES WHATSOEVER, AND OUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY YOU TO US. IN NO EVENT SHALL WE BE LIABLE FOR (i) ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (ii) FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD-PARTY’S ACTIONS, FAILURE TO ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.
No Other Warranty. We do not monitor or exercise control over the content of the information transmitted through Our facilities. Use of Our Services or any information that may be obtained there from is at your own risk. Our Services are provided on an “AS IS” basis, and your use of Our Services is at your own risk. EXCEPT AS SET FORTH IN THIS SECTION, WE MAKE NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES, INCLUDING THE RESULTS AND PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR LEGAL COMPLIANCE.
Disclaimer of Actions Caused by and/or Under the Control of Third-Parties. We do not (and cannot) control the flow of information to or from Our network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties outside Our control. At times, actions or inactions of such third-parties may impair or disrupt your connections to the Internet (or portions thereof). We cannot guarantee that such events will not occur. Accordingly, We hereby disclaim any and all liability resulting from or related to such events.
Because some jurisdictions prohibit the limitation of liability for consequential or incidental damages, in such jurisdictions the limitation of liability only with respect to consequential or incidental damages may not apply to you, and Our respective liability and our third-party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in such jurisdictions.
In the event that a court of competent jurisdiction should hold that the limitations of liability or remedies available as set forth in this TOS, or any portions thereof, are unenforceable for any reason, or that any of Your remedies under this Agreement fail, then You expressly agree that under no circumstances will Our total, aggregate liability (along with Our third-party service providers, employees, distributors, agents or affiliates) to You or any party claiming by or through You for any cause whatsoever exceed USD$100, regardless of the form of action and whether in contract, statute, tort or otherwise.
You hereby represent and warrant to to indemnify, defend and hold Us and Our affiliates, agents, employees, and licensors (including the third-party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of your violation of this TOS, State or Federal Securities laws or regulations, or any other person’s rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
Assignment. You may not assign this TOS or any of your rights or obligations hereunder without Our prior written consent, and any such attempted assignment shall be void. This TOS shall be binding upon the parties’ respective successors and permitted assigns.
Notices. Any notices or communication under this TOS shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested.
If to Us:
ATTN: Hosting Department
22821 Medina Lane Unit A
Cupertino CA, 95014
If to You:
The address You provided at account set-up.
Governing Law. This TOS, and all future agreements You may enter into with us, unless otherwise indicated on such other agreement, will be governed by the laws of the State of California, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business in California or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, You agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Santa Clara, California.
Modifications. No modifications, amendments, supplements to or waivers of this TOS, or any of its provisions, shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
Severability. In the event any one or more of the provisions of this TOS is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
Force Majeure. We, along with our affiliates, agents, employees, and licensors (including our third-party service providers) shall not be liable for failure to perform any obligation under this TOS if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
Independent Contractors. The parties to this TOS are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
Entire Agreement. This TOS, along with any relevant third-party agreements for licenses or services provided to you, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
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