- Cherrywood Technologies Inc. does not allow unsolicited email and requires opt-in list managers to include at least one single action method of unsubscribing in each email. We reserve the right to limit incoming or outgoing email at any time.
- Cherrywood Technologies Inc. reserves the right to terminate your account at any time without a refund. Reasons for termination include, but are not limited to:
- Abuse of the machines - either intentional or due to improper coding
- Committing or Promoting any type of illegal activity including fraud, mail bombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, "warez", "hacking"/"cracking"/"key generators".
- The Services to traffic in illegal drugs, gambling and/or obscene materials.
- The Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party.
- Additionally, Cherrywood Technologies Inc. reserves the right to terminate your account if at any time your site is found to have/store child pornography, beastiality or any kind of written word that describes this content that would be in violation of United States and/or international law.
- Use of ad-servers, attempts to circumvent quota system owned by 'nobody', use of torrent software, proxies, excessive resource usage or 'core dumping'.
- Attempts to circumvent any of our security policies, procedures or systems.
This User Agreement ("Agreement") is an agreement between CHERRYWOOD TECHNOLOGIES INC., ("Company") and the party set forth in the related order form ("Customer" or "You") incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES THIS CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Under this Agreement, Customer shall comply with Company's then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed under the Legal Details section of this web site, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, You will be responsible for Your customers' content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer's customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
Terms; Termination; Cancellation Policy
- The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE (CREDIT CARD OR PAYPAL) FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
- This Agreement may be terminated
- by either party by giving the other party thirty (30) days prior written notice subject to a minimum $50.00 charge as an early cancellation fee payable by Customer,
- by Company in the event of nonpayment by Customer,
- by Company, at any time, without notice, if, in Company's sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer's use of the Services disrupts or, in Company's sole and absolute discretion and/or judgment, could disrupt, Company's business operations and/or
- by Company as provided herein.
- If You cancel this Agreement, upon proper notice to Company, prior to the end of the Initial Term or any Term thereafter,
- You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
- Company may (but is not obligated to) refund to You all pre-paid fees for basic services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment, provided that, You are not in breach of any terms and conditions of this Terms of Service, AUP, Anti-Spam, User Agreement; and/or
- You shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term (other than basic fees as provided in (ii) above). Any cancellation request shall be effective thirty (30) days after receipt by Company, unless a later date is specified in such request.
- Company may terminate this Agreement, without penalty,
- if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or
- immediately, if Company determines that Customer’s use of the Services, the Web site or the Customer Content violates any Company term or condition, including this Terms of Service, AUP, User Agreement or Anti-Spam. If Company cancels this Agreement prior to the end of the Term for Your breach of this Agreement and related agreements, including the AUP, User Agreement or Customer's use of the Services disrupts our network, Company shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, You shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and Company shall have the right to charge You an administrative fee of a minimum of $50.00.
- Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 10, 11, 13, 15 and 16 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, not with standing the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
- Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
- Customer will notify Company of any change in Customer’s mailing address, telephone, electronic mail or other contact information.
- Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
- Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services.
- Back-ups can be excluded IF Service for back-ups are paid by the Customer to the Company for the sole purpose of the Company taking responsibility of Customer back-ups. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide this Service.
Customer's Representations and Warranties
- Customer hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
- Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
- Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
- Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and
- Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
- Customer shall be solely responsible for the development, operation and maintenance of Customer's web site, online store and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation
- the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products,
- ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
- ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
- Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
- In addition to transactions entered into by Customer on Your behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s account, whether or not the transactions were on Customer’s behalf.
License to Company
Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order:
- digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and
- make archival or back-up copies of the Customer Content and the Customer Web site.
- Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
- Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
Billing and Payment
- Customer will pay to Company the service fees for the Services in the manner set forth in the Order Form.
- Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term.
- The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to Company’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
- Unless otherwise specified, all fees and related charges shall be due and payable within thirty (30) days after the date of the invoice. If any invoice is not paid within seven (7) days after the date of the invoice, Company may charge Customer a late fee of $15.00 for; in addition, any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
- If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
- If any check is returned for insufficient funds Company may impose a minimum processing charge of $30.00.
- In the event that any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
- There may be a minimum $75.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers will be assessed a minimum $45.00 charge.
- There may be a minimum $45.00 charge for all credit card chargebacks.
- Customer acknowledges and agrees that Company may pre-charge Customer's fees for the Services to its credit card or PayPal supplied by Customer during registration for the Initial Term.
- YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD OR PAYPAL FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
Company as Reseller or Licensor
Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-Company Product"). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
Internet Protocol (IP) Address Ownership
If Company assigns Customer an Internet Protocol ("IP") address for Customer's use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
- grants to Company a license to cache the entirety of the Customer Content and Customer's web site, including content supplied by third parties, hosted by Company under this Agreement and
- agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
- agrees that all code, software, and/or any content provided by Company is not owned by Customer. The Customer is provided a license to have unlimited use of provided code, software, and/or content without right to release to the public without Companies written consent.
- further agrees that the license for the code, software, and/or content provided by the Company may be transfered in the sale of Customers assests in an acquisition. The new Customer in the acquisition will further be required to abide by Company license.
Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Company's servers. The maximum storage space, per account, will not exceed Service paid for by Customer. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
Bandwidth and Disk Usage
- Company shall provide Customer with a large volume of bandwidth, disk space and other resources, such as email and/or file-transfer-protocol ("FTP") accounts. The Services are intended for normal use only. Any activity that results in excessive usage inconsistent with normal usage patterns is strictly prohibited. Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the "Agreed Usage"). These allotments are optimized and dedicated towards serving the Content and Customer's electronic mail services related solely to Customer's web account(s) with Company. Customer shall not use any bandwidth and/or disk usage for materials other than the Customer's Web site, Customer Content and/or Customer's electronic mail services. For example, Customer may not use bandwidth or disk usage as offsite storage area for electronic files or as a provisioning service for third party electronic mail or FTP hosts. Company will monitor Customer's bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of Customer's Web site, Customer Content, Customer's electronic mail services and/or other materials or termination of this Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules and regulations regarding Customer's Web site, Customer Content and/or Customer's electronic mail services and will each, including bandwidth, disk space and other resources only for lawful purposes. Customer may not utilize: the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party; the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States in violation of applicable export control laws; the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message. If Company learns or discovers that Customer is violating any law related to Customer's Web site, Customer Content and/or Customer's electronic mail services, use of bandwidth, disk usage or Agreed Usage, Company may be obligated to inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to Customer, Customer's Web site, Customer Content and/or Customer's electronic mail.
- Customer will agree to Company tracking bandwidth and disk usage on a constant basis for the purpose of network management and billing. In the event that Customer exceeds agreed upon bandwidth or disk usage, Company shall provide an invoice with the amount of overages for the current billing cycle. This amount will be included with the following months bill and will be due on the billing anniversary date.
- Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company's technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
- Company owns all right, title and interest in and to the Services and Company's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Noting in this Agreement constitutes a license to Customer to use or resell the Marks.
Disclaimer of Warranty
Customer agrees to use all Services and any information obtained through or from Company, at Customer's own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "COMPANY PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
- Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Company's sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro-rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
- The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company's reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer's equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability
- IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
- EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer’s indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, Company's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
- Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one if its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
- Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
Revised: March 24, 2015
- Independent Contractor.
Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction.
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions.
No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries.
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
- Government Regulations.
Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
Civil Subpoena Policy
- If you seek the identity or account information of the Company customer in connection with a civil legal matter, you must fax, mail, or serve the Company, INC. with a valid subpoena.
Submission of Subpoenas
- The Company is located in Santee, California and all civil subpoenas should be served at that location or mailed to:
Cherrywood Technologies Inc.
Attn: Brian Wing, CFO
10221 Buena Vista Ave
Santee, California 92071
- Upon the receipt of a validly issued civil subpoena, the Company will promptly notify the customer whose information is sought via e-mail or U.S. mail. If the circumstances do not amount to an emergency, the Company will not immediately produce the customer information sought by the subpoena and will provide the customer an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance
- The Company will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Company invoice. Checks should be made out to the Company, INC. The Company's subpoena compliance costs are as follows:
- Research - $100.00/hour
- Federal Express - Cost as Billed
- Copies - $1.00/page
- Compact Discs - $15.00/per CD
Policies Regarding E-mail
- The Company will not produce the content of e-mail, as the Electronic Communications Privacy Act, 18 U.S.C. ยง2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. The Company's e-mail servers do not retain deleted or sent e-mail. However, deleted e-mail may be recoverable from back-up servers for a limited time.
Revised: October 10, 2015
- The Company reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the Company e-mail address is related to the pending litigation and the underlying subpoena.
Anti Spam Policy
Revised: October 10, 2015
- CHERRYWOOD TECHNOLOGIES INC., (“the Company”) maintains a zero tolerance policy for use of its network in any manner associated with the transmission, distribution or delivery of any bulk e-mail, including unsolicited bulk or unsolicited commercial e-mail (“SPAM”). You may not use any our services or network to send SPAM. In addition, e-mail sent, or caused to be sent, to or through our network may not:
- Use or contain invalid or forged headers;
- Use or contain invalid or non-existent domain names;
- Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
- Use other means of deceptive addressing;
- Use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
- Contain false or misleading information in the subject line or otherwise contain false or misleading content;
- Fail to comply with additional technical standards described below;
- Otherwise violate the Company’s terms and conditions.
- The Company does not permit or authorize any attempt to use its network in a manner that could damage, disable, overburden or impair any aspect of any of our services, or that could interfere with any other party’s use and enjoyment of any the Company product or service.
- We monitor all traffic to and from our servers. Customers suspected of using the Company’s products and services for the purpose of sending SPAM will be investigated. It is the Company’s policy to immediately remove and deactivate any offending web site sending SPAM.
- Customers may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. The Company may consider the lack of such proof of explicit affirmative permission of a questionable mailing.
- Customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation.
- Customers are prohibited from providing services for websites that have been included in SPAM. includes, but is not limited to, website(s), providing DNS services as well as website redirect services.
- If the Company believes that unauthorized or improper use is being made of any product or service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. The Company may immediately terminate any account on any product or service which it determines, in its sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
- The Company reserves the right to suspend and/or cancel permanently any and all services provided to a User without any notification. If a Customer is in violation of any term or condition of this SPAM Policy, the Acceptable Use Policy, User Agreement or uses of our services to disrupt or, in the Company's sole judgment, could disrupt the Company's business operations, the Company reserves the right to charge such Customer an administrative fee equal to $10000 per each piece of SPAM sent.
- To report an incidence of SPAM, please send an email to email@example.com.
- Nothing in this policy is intended to grant any right to transmit or send e-mail to, or through, our network. Failure to enforce this policy in every instance does not amount to a waiver of the Company’s rights.
- Unauthorized use of the Company’s network in connection with the transmission of unsolicited e-mail, including the transmission of e-mail in violation of this policy, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by state and federal laws.
Domain Name Dispute & Claims Policy
CHERRYWOOD TECHNOLOGIES INC. ("CHERRYWOOD TECHNOLOGIES INC") supports the protection of intellectual property. Therefore, we have established the following policies regarding copyright infringement claims.
Domain Name Dispute Claims
Please refer to the Uniform Domain Name Dispute Resolution Policy (the "UDRP") if you have a concern or dispute concerning a domain name. The UDRP covers domain names disputes; this Policy specifically excludes domain name disputes. Please see http://www.icann.org/udrp/udrp.htm.
Domain Name Dispute Claims
Copyright Infringement Claims
- To notify CHERRYWOOD TECHNOLOGIES INC that there has been a copyright violation, please follow the specific instructions below for filing a copyright complaint.
- If you are responding to a complaint of infringement, you will need to follow our Counter Notification policy below.
Domain Name Dispute Claims NOTICE AND PROCEDURE FOR MAKING CLAIMS OF
Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on the CHERRYWOOD TECHNOLOGIES INC., ("CHERRYWOOD TECHNOLOGIES INC") system or Web site should be sent ONLY to our Designated Agent.
NOTE: THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR NOTIFYING CHERRYWOOD TECHNOLOGIES INC__ THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (E.G., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE, ETC.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
Written notification must be submitted to the following Designated Agent:
Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include ALL of the following:
CHERRYWOOD TECHNOLOGIES INC.
Attention: Raymond Belden
10221 Buena Vista Ave, Suite A
Santee, CA 92071
- Physical or electronic signature of a person authorized to act on behalf of the copyright owner (i.e., merging a scanned handwritten signature into the electronic text or using public-key encryption technology).
- Identification of the copyrighted work claimed to have been infringed or a representative list if multiple works are involved.
- Identification of the material that is claimed to be infringing that should be removed or access to disabled and information reasonably sufficient to enable the online service provider to locate the material (usually a URL to the relevant page).
- Information reasonably sufficient to allow the online service provider to contact the complaining party (address, phone number, e-mail address).
- Statement that the complaining party has "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law."
- Statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.
Upon receipt of notification of a claimed infringement, CHERRYWOOD TECHNOLOGIES INC will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, regardless of whether the material or activity is ultimately determined to be infringing; if selective action is not possible, CHERRYWOOD TECHNOLOGIES INC will terminate the alleged infringer’s Internet access.
CHERRYWOOD TECHNOLOGIES INC will also take reasonable steps to promptly notify the alleged infringer in writing of the claim against him or her, and that it has removed or disabled access to the material or terminated Internet access (see Sections 512(c)(1)(C) and (g) of the DMCA).
Upon receipt of notice from CHERRYWOOD TECHNOLOGIES INC that a claim of infringement has been made and/or that the material has been removed or that access to it has been disabled, the Subscriber may provide a Counter Notification.
To be effective, a Counter Notification must meet ALL of the following requirements
- It must be a written communication;
- It must be sent to the Service Provider's Designated Agent;
- It must include the following:
- A physical or electronic signature of the Subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement, under penalty of perjury, that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The Subscriber's name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the Subscriber’s address is located, or if the Subscriber's address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a Counter Notification from the Subscriber containing the information as outlined above, CHERRYWOOD TECHNOLOGIES INC will:
- Promptly provide the Complaining Party with a copy of the Counter Notification;
- Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days following receipt of the Counter Notice;
- Replace the removed material or cease disabling access to the material in not less than ten (10), nor more than fourteen (14), business days following receipt of the Counter Notice, provided Service Provider's Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Service Provider's network or system.
CAUTION: Pursuant to Title 17, Section 512(f) of the United States Code, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
It is CHERRYWOOD TECHNOLOGIES INC’s policy to provide for the termination, in appropriate circumstances, of CHERRYWOOD TECHNOLOGIES INC customers and account holders who repeatedly violate this policy or are repeat infringers of copyrighted works, trademarks or any other intellectual property.
Revised: October 8, 2015
Copyright Infringement Claims / (DMCA)
- To notify CHERRYWOOD TECHNOLOGIES INC that there has been a copyright or trademark violation, download and review our procedures for filing a complaint under the Digital Millennium Copyright Act (Click here) and follow the instructions regarding Notice and Procedure for Making Claims of Copyright Infringement.
- If you are responding to a complaint of infringement, download and review our procedures for filing a Counter Notification. (Click here) and follow the instructions regarding Counter Notification.
Disk Space & Bandwidth
CHERRYWOOD Personal & Business Class are shared environments, so to ensure fast & reliable service to all of our clients, accounts that adversely affect server or network performance must correct these issues or will be asked to upgrade to a virtual or dedicated server.
- Customers may not use Cherrywood's network as to attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the Customer, logging into a server or account the Customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy.
- Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network.
- Customers will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on our network, or denial of service, deliberate or not, caused by forging ARP queries or replies or by configuring IPs into their machine which were not assigned to their server. Any of these actions may result in disconnection of the server at fault from the network and/or correction of the fault at the customer's risk and expense. Any loss of functionality caused by the attempted correction of the problem will be the customer's responsibility to solve. If the malignity of the problem is deemed by Cherrywood Technologies Inc. to not warrant such drastic action, the customer will be contacted via the ticketing system to correct the problem himself. Customers are responsible for maintaining their contact information in the ticketing system such that the email address is always reachable even in the event of their Cherrywood Technologies Inc. servers being shut down.
- If your server is the initiator or target of a denial of service attack that adversely affects our/somebody else network, we will terminate your account without warning and you will be held responsible for any charges that may result from this action.
- Activities that attract denial of service attacks are expressly prohibited. Customers involved in these activities will be terminated as soon as we are aware of them. These activities include, but are not limited to: selling shell accounts, and involvement with IRC of any kind. This prohibition is for the protection of our customer base as a whole; these kinds of services tend to attract attacks that have the potential to degrade service for all of our customers.
- CHERRYWOOD will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate systems or network security may incur criminal or civil liability. Cherrywood Technologies Inc. reserves the right to charge up to $500 per complaint to investigate.
Mandatory Security Updates
From time-to-time, we notify our clients of any exploit we deem potentially catastrophic. For an exploit to be considered catastrophic, it must be attacking widely deployed applications that are in use on a majority of servers. For example, but not limited to, software related to DNS, APACHE, and SENDMAIL.
The security notification will be sent via our customer subscribed mailing list, with a subject line of "Mandatory Security Update". It will provide a synopsis of the exploit, what is effected, and probable repercussions associated with failure to update. In addition, the email will provide a link for customers to download updated software or fixes, or patches, and directions on installing it. Customers are responsible for following the instructions in all " Mandatory Security Update" within 24 hours from their release.
To ensure the security of the clients' servers and to maintain our network integrity, if 24 hours past notification the software at issue has not been updated or patched, Cherrywood Technologies Inc. reserves the right to apply all necessary updates, fix any other obvious security holes we may find, and bill the customer's account at the applicable hourly support rate without further notice or customer approval.
Cherrywood Technologies Inc. maintains, as a convenience to its clients, regular automated data backups are performed on the condition that this particular Service is paid for previously.
While Cherrywood Technologies Inc. maintains the previously stated backups, this service is provided as a convenience only and Cherrywood Technologies Inc. assumes no liability as to the availability or completeness of client data backups. Each client is expected and encouraged to maintain backup copies of their own data. Cherrywood Technologies Inc. will provide, upon request, one (1) data restore per four (4) calendar months free of charge. Additional data restores may be provided but are subject to additional service fees.
Higher levels of traffic will incur overcharges on a monthly basis. However, the rates for bandwidth usage are lower for Cherrywood than for any other services we offer. Cherrywood provides full access to web reports for network traffic monitoring and reporting. Cherrywood also provides graphs that show customers' monthly usage, which is the average rate, and reflects the amount of bandwidth transferred during the month. The bandwidth charges reflect the average monthly bandwidth in Megabits per second (Colocation Customers), Megabytes (VM Customers) and in Gb/month. These charges reflect our expenses in network maintenance, upgrades, backbone port charges, leased line loops, and equipment.
ARIN (the American Registry for Internet Numbers) is becoming very stringent with IP addresses, and refuses to grant them without a strict accounting of use of existing IP's; we must therefore require periodic updates of IP address use. The way we will implement this, for now, is for customers who need more IP addresses to send a blank email to firstname.lastname@example.org to get detailed instructions.
Any IP numbers which remain unused after a 30-day period, according to our periodic 'ping' testing, will be subject to reassignment by Cherrywood Technologies Inc. No prior notice will be given, but we will email you at your current contact address to inform you that we have taken back the IP numbers. You can of course request more when you are ready to use them. And, as stipulated elsewhere, any work incurred in reclaiming unused IP numbers which have been registered as name servers will be billed at our current administrative services rates.
While we will allocate our customers an "unlimited" number of IP addresses, our allocation of IP addresses is limited by ARIN's new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based could be used, we will revoke authorization to use those IP addresses that could be used with name-based."
Cherrywood Technologies Inc. may assign its customers IP (Internet Protocol) addresses on a temporary basis or for the life of the contract. Customer agrees that IP addresses are not portable, and acknowledges that IP addresses are the sole property of Cherrywood Technologies Inc. and are assigned as part of the services. Furthermore, client acknowledges that use of IP addresses not allocated by Cherrywood Technologies Inc. to customer or users is expressively prohibited and will incur a penalty fee.
This fee would be calculated on a standard engineer's hourly rate fee of $150 separate from any other service or incident fees prepaid by customer. At the conclusion of Customer's contract, Customer is required to provide a copy of an Authorized domain registrar (i.e. Network Solutions) records, showing that Customer's hostname servers no longer claim the use of our IP addressed we have provided to customer. This document must be delivered to Cherrywood Technologies Inc. within 10 days after the effective contract termination date.
Customers are prohibited from transmitting on or through any of CHERRYWOOD's services, any material that is, in CHERRYWOOD's sole discretion, unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law.
CHERRYWOOD's services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. CHERRYWOOD's reserves the right to remove such illegal material from its servers.
The customer is responsible for keeping his billing data with CHERRYWOOD up-to-date and accurate. Furnishing false data on any contract or application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
The resale of CHERRYWOOD's products and services is not permitted, unless specifically permitted and documented in a written agreement.
Important IP Disclosure: Cherrywood Technologies Inc. may assign customer a reasonable amount of IP addresses (Internet Protocol) on a temporary basis or for the life of the contract. Client agrees that IP addresses are not portable and acknowledges that IP addresses are the sole property of Cherrywood Technologies Inc. and are assigned as part of the services. Furthermore, client acknowledges that use of IP addresses not allocated by Cherrywood Technologies Inc. to customer or users is expressively prohibited and will incur a penalty fee. This fee would be calculated on a standard engineer's hourly rate fee of $150 separate from any other service or incident fees prepaid by customer.
Facilitating a violation of this AUP: Software, services, programs, activities, and advertisements that promote, enable, or facilitate any activity that is prohibited within this document, including spam, denial of service attacks, compromise of other systems or attempts to compromise other systems are ALL considered to be violations of this AUP.
To insure the quality of service of our shared clients, Cherrywood Technologies Inc. reserves the right to migrate high resource utilizing clients to servers which may, or may not, incorporate stated 'business class hardware'.
The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew.
ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE CHERRYWOOD TECHNOLOGIES INC, INC TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated:
- by giving CHERRYWOOD TECHNOLOGIES INC. thirty (30) days prior written notice,
- by CHERRYWOOD TECHNOLOGIES INC. in the event of nonpayment by Customer,
- by CHERRYWOOD TECHNOLOGIES INC., at any time, without notice, if, in CHERRYWOOD TECHNOLOGIES INC.'s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer's use of the Services disrupts or, in CHERRYWOOD TECHNOLOGIES INC.'s sole and absolute discretion and/or judgment, could disrupt, CHERRYWOOD TECHNOLOGIES INC.'s business operations.
CHERRYWOOD reserves the right to cancel service(s) at any time. All fees paid in advance of cancellation will be pro-rated and refunded by CHERRYWOOD to customer if CHERRYWOOD initiates its right of cancellation and customer is NOT in violation of these Terms and Conditions. If cancellation is caused by customers and/or its client's breach of the Terms and conditions, then customer agrees that no refund is due. Customer understands that service(s) can be canceled at any time effective the end of the contract.
Due to protection concerns, all account cancellations must be done via our official electronic cancellation form. Notifications of cancellation must be made 30 days prior to successive rebill period. Cherrywood Technologies Inc. reserves the right to deny, forfeit, or refuse refunds at any time if necessary. Third party cancellations are not accepted.
Upon termination, either by Cherrywood Technologies Inc. or Customer, for any reason, Customer is responsible for deleting his/her host registrations from domain registrar(s) immediately. Customer further agrees to pay Cherrywood Technologies Inc. all reasonable administrative costs if Cherrywood Technologies Inc. must intervene in deregistering the hosts.
- CHERRYWOOD is not responsible for any damages your business may suffer.
- CHERRYWOOD does not make implied or written warranties for any of our services.
- CHERRYWOOD denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by CHERRYWOOD.
- The Customer will not use its network nor space provided by CHERRYWOOD to violate any law. In the event Customer violates existing law, CHERRYWOOD shall have the right to terminate all service set forth in this Agreement. In the event CHERRYWOOD is informed by government authorities of inappropriate or illegal use of CHERRYWOOD facilities or other networks accessed through CHERRYWOOD, CHERRYWOOD may terminate customer's service.
- CHERRYWOOD will cooperate fully with investigations of violation of systems or network security at other sites.
- CHERRYWOOD will cooperate with law enforcement authorities in the investigation of possible criminal violations.
- Customers who violate systems and/or network security, may incur in criminal or civil liability.
If you have any questions concerning the above stated terms and conditions then please Contact us.