Application

All Goods and Services sold on the One Firefly LLC online store (http://onefirefly.ultracartstore.com) are subject to the following Terms of Use (“Terms”). Any participation in our Services will require your (“Client”) acceptance of these Terms of Use. Please read them carefully.


Orders

Orders will be deemed to have been placed once you have received a payment confirmation receipt (via email) from One Firefly. One Firefly will make every effort to deliver Client their confirmed services within the estimated time frame, but delivery time will not be guaranteed as part of these Terms.


Subscription Fees

Client agrees to pay to One Firefly all required fees for each service purchased or use in accordance with the pricing and payment terms presented on this website for that service. Client agrees to be have their payment method on account to be automatically charged per the subscription terms as noted below. Payment method may be edited or modified at the client’s convenience by using the account manage page. All fees paid by Client are non-refundable.

Subscription Services: One Firefly’s UI University & Lead Concierge Products & Services are billed on a rolling monthly subscription basis. This means that Client will be billed in advance on a recurring, monthly basis. Each monthly period is called a “billing cycle”. Client subscription will automatically renew at the end of each billing cycle unless Client cancels auto-renewal through the online account management page, or by contacting the One Firefly customer support team directly. Client may cancel auto-renewal subscription at any time, in which case the subscription will continue until the end of the current billing cycle before terminating. Should client’s payment method fail for any reason, Client will have 5 business days to input valid payment method before One Firefly terminates access to the service. Upon making first payment for their order, each client will be sent an email confirmation which will contain a link to a pre-production form that Client should complete in a timely manner. Failure or delays in completing this form may result in production delays.

Timing and Terms of UI University Subscriptions: Client agrees to pay for the first month of any purchased subscriptions at the point and time of purchase. One Firefly will then attempt to produce any purchased services within 30 days. Client’s first month of UI University subscription service will be considered to begin 30 days later (after content has been produced and delivered to client). If purchased content and services are not produced within 30 days of purchase, the Client’s first month of service will be considered to begin once fully produced and delivered. After the initial point of purchase, client can expect to be billed automatically 60 days later for their second month of service, unless there is any delay in production of content. Subsequent payments will be billed automatically per the monthly billing cycle as noted above. Clients who elect to receive the Media Gallery product will be required to submit necessary pre-production information in order to receive a “custom” URL (example: videos.yourwebsite.com). Failure to provide the required information within 10 business days will result in the media gallery being produced with a generic URL. Client may select up to five (5) video libraries for the monthly price of $99.99. Any additional libraries will be $24.99/month. Should client choose to remove an existing library (that One Firefly has already produced) and swap with an additional library, client will incur a one-time fee of $200, unless client has already paid for twelve (12) months of the UI University service.

Timing of Lead Concierge Subscriptions : Client agrees to pay for the first month of any purchased subscriptions at the point and time of purchase. Provided Client provides One Firefly with the requisite Pre-Production information within one week, service will begin within 2 weeks of date of initial purchase. Failure to provide One Firefly with the requisite pre-production information will result in delays in service. Once setup has been completed and service officially begins, Client can expect to be automatically charged 30 days later.


Intellectual Property Disclosure

Client acknowledges that all copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) One Firefly uses to provide services belongs to One Firefly and/or third parties. By way of example, such content may include, but is not limited to, such items as: videos, text, audio, graphics and photos. Nothing in the Terms grants Client a right or license to permanently obtain or re-sell any trademark, design right or copyright owned or controlled by One Firefly or any other third party.

Limitation of Firm's Liability

(a) In no event shall One Firefly be liable to Client for lost profits, or special or consequential damages relating to any One Firefly product or services.

(b) One Firefly shall not be liable for any claim or demand made against Client by any third party.


Notification of Changes

One Firefly reserves the right to change these Terms from time to time as it sees fit, and Client’s continued use of our services signify your acceptance of any adjustment to these Terms. If there are any changes to our Terms, One Firefly will update and date the latest Terms here on this web page.

Termination – One Firefly reserves the right to terminate or suspend access to any services immediately, in the event that Client breaches these Terms of Use.


Applicable Law

By using One Firefly’s Services, Client agrees that the laws of the state of Florida, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between Client and One Firefly or its associates.


Website Maintenance Terms of Service

 Last Updated: 3/29/2017


1. User’s Acknowledgment and Acceptance of Terms

This is an agreement that you engage us (One Firefly, LLC) to provide you services in accordance with these Terms of Service.  By accessing or using the Services, you agree to be bound by this agreement.

The terms “we”, “us” or “our” shall refer to One Firefly, LLC. The terms “you”, “your”, “user”, “client” or “customer” shall refer to any individual or entity who accepts this Agreement.


2. Description of Services

As a One Firefly “Web Maintenance” customer, you will receive web hosting, web management, and web mastering services, as described in these Terms of Service.


3. Host Obligations

We will…

(a) house your website on our servers, making it accessible to third parties. If a migration to our server is required, we will work with your existing hosting services provider to perform the migration.

(b) provide the necessary administrative access to allow you to make updates to the Website

(c) provide you access to your cPanel account on the server

(d) provide you FTP access to your website


4. Services

4.1 All Web Maintenance plans include the following services…

4.1.1. Evaluation of website readiness:  A thorough evaluation will determine if any issues with your existing website require addressing prior to service setup.

4.1.2. Server setup and configuration:  Your website is integrated with our service features; monitoring platform setup, backups protocols systems configuration, firewall and security hardening, and more...

4.1.3. Storage: 20G of server storage

4.1.4. Uptime Monitoring:  Real-time monitoring of your website’s performance, health and uptime

4.1.5. Maintenance and Security: We take all reasonable measure to keep your website safe and secure from attacks, including, but not limited to…

(a) Hack/Infection Cleanups Included:  Should sophisticated exploits penetrate all defenses, One Firefly will response quickly to manage the purging of malware, suspicious files or infections and ultimately restore your site to complete health.

(b) CMS Version Updates: Your website is run on a powerful CMS platform.  Regular updates and security patches are routinely released to ensure website owners can keep their online presence protected.  All One Firefly clients with Professional hosting will receive these updates deployed to their website.

(c) Core Extension Updates:  CMS platforms use powerful extensions to extend the features and functionality of your website.  These extensions also become outdated after time, and can pose high security risk.  All Web Maintenance customers will receive updates to core extensions to help keep their websites protected.

(d) Firewalls:  IP address blocking against suspicious activity, or from regions known for attacking and exploiting websites.

(e) Daily Malware Scans:  Our system will scan the entire server to detect and quarantine suspicious and harmful files.

4.1.6. On-Server / Local Backups:  A first step to keeping your website backed up and easily restored, is to house a backup on your server for quick and easy deployment

4.1.7. Off-Server Backups:  Storing your backups off-server ensures that your data is never compromised because of server failure

4.1.8. Remote Backups:  For the ultimate peace-of-mind, backups are pushed to a separate datacenter and archived

4.1.9. CMS Training Videos Access:  Access to video resources demonstrating the ease and use of your website’s administrative area.  These training videos are not intended to demonstrate the full range and capability of your CMS website.  Rather, step-by-step instructions walk you through some of the most common administrative tasks you might seek in performing updates on your own.

4.1.10. Support:  Web provide professional support from a dedicated team of in house professionals which you can access via company’s main office phone, email, or support ticketing systems.

 

4.2. “Pro” Plan Services Include…

4.2.1 Pro service level customers will receive all services, as describe in section [4.1].  There are no additional services included with this service level.

 

4.3. “Pro+” Plan Services Include…

4.3.1 Pro+ service level customer will receive all services, as describe in section [4.1], plus…

4.3.2 Credits: 72 Credits (a year) towards web maintenance updates.
*See section [5] for Credit System terms and definitions.

4.3.3. Automatic updates and/or scheduled customization requests:  You are eligible for automatic updates, which might include changing your slideshows, galleries, homepage images and videos on a regular cycle consistent with the Terms of Service. Or, satisfying "a la carte" customization requests consistent with the Terms of Service.

4.3.3. Priority Service:  With “Accelerated Turn-Around Time,” all work requests receive production priority, moving your tasks to the front of the line.  Requests will move up in the production pipeline to have requests satisfied within [ten] working days.

4.3.3. 100% Customization Carryover Benefit:  If we designed customizations to your existing website, and you wish to carry over to a new website, included in your future website builds is a no-questions-asked, hassle free migration of your existing customizations.

4.3.3. Future Website Discount: 20% discount on future website purchases from One Firefly (after 1 year of enrollment).  

4.3.3. Special Promotions:  Receive exclusive discounts on designated products and services


4.4. “Premier” Plan Services Include…

4.4.1. Premier service level customer will receive all services, as describe in section [4.1], plus…

4.4.2. Credits: 192 Credits (a year) towards web maintenance updates.
*See section [5] for Credit System terms and definitions.

4.4.3. Automatic updates and/or scheduled customization requests:  You are eligible for automatic updates, which might include changing your slideshows, galleries, homepage images and videos on a regular cycle consistent with the Terms of Service. Or, satisfying "a la carte" customization requests consistent with the Terms of Service.

4.4.4. Priority Service:  With “Accelerated Turn-Around Time,” all work requests receive production priority, moving your tasks to the front of the line.  Requests will move up in the production pipeline to have requests satisfied within [three] working days.

4.4.5. 100% Customization Carryover Benefit:  If we designed customizations to your existing website, and you wish to carry over to a new website, included in your future website builds is a no-questions-asked, hassle free migration of your existing customizations.

4.4.6. 30% discount on future website purchases from One Firefly (after 1 year of enrollment).

4.4.7. Special Promotions:  Receive exclusive discounts on designated products and services

4.4.8. Citation Management [Optional]:  Get mentions of your business name, website, and location out on other sites. These listings send qualified signals to Google that you are indeed a real business, and will help you to rank better.

5. Credits System

Credits are allocated to your account based on Web Maintenance service levels, as defined below…

Pro = 0 Credits
Pro+ = 72 Credits (a year) towards web maintenance updates.
Premier = 192 Credits (a year) towards web maintenance updates.

1 credit = 15 minutes

(a) Credits can be used monthly, or as requested.

(b) If credits are exhausted ahead of the agreement Term, you can purchase additional credits.

(c) If credits are exhausted ahead of the agreement Term, you are still responsible for full payment of fees for services for the agreement Term duration.  This will also ensure you remain eligible for all other service provided, as described in section [4.1]; hosting, platform updates, monitoring, etc…


6. Evaluation of Readiness for Services

6.1. Your website will go through an evaluation process immediately after signing up for services, which will include an assessment of your existing website to determine its readiness for our services.  The process will includes, but not limited to, ensure your website CMS platform and its core extensions are up-to-date and that your website is clean from any malware.  If you are hosting with a Third Party Hosting provider, we will make all reasonable efforts to:

(a) Update your websites CMS Platform version

(b) Update your CMS core extensions

(c) Clean your website of any detected malware

6.2. If tasks in section 6.1 above cannot be performed on our end, despite our best efforts, we will request and require your existing hosting provider or web administrator execute these tasks to satisfaction.  One Firefly reserves the right to determine if those task have been completed to satisfaction.

6.3. One Firefly reserve the right to deny services if all efforts to satisfy tasks in section [6.1] cannot be completed, either by One Firefly or your existing Hosting provider or Web Administrator.


7. Migrations

7.1. If your website is not hosted with One Firefly, it will need to pass our evaluation as described in section [6].  Once your website have been evaluated and is prepared for services, it will be migrated to our servers to finalize the setup and configuration of our services.  

7.2. We cannot guarantee the successfully migration of website from third party hosting providers.  Such migration support will be performed as best efforts to complete the successful migration. If it is deemed a successful migration cannot be performed, you will be notified as to next steps; which may involve assistance from your current host in resolving any technical issues


8. Client Obligations

8.1. Compliance with Terms of Service. You will comply with our Terms of Service as described in this agreement.

8.2. Compliance with Laws. You will comply with all applicable Laws.


9. Client Website Management

(a) Compliance with Host Standards. You will post all Client Content in conformity with our standards.

(b) Monitoring of Content. You will ensure that no Client Content contains any content or services that are inaccurate or misleading or that violate any applicable Law or infringe on the intellectual property or other rights of any third party.

(c) Accuracy of Published Content. You will ensure the accuracy of all materials that you publish on the Website.

(d) Ownership of Content. You will ensure that you either own all Client Content or have the right to publish it on the Website.

(e) Linking Authorizations. You will acquire any authorizations that may be necessary for hypertext links to third party websites.

(f) Unauthorized Access. You will use reasonable efforts to carefully guard you administrative access to the you website, and keep out of unauthorized reach any restricted areas of the Website or to any databases or other sensitive material generated from or in connection with the Website. Further, you grant One Firefly all access to your website and the rights to access your website at anytime.

(g) Account Information. You will provide us with accurate account information (including name, address, phone number, email address, and payment information) and update that information as appropriate. We will have no liability if we are unable to contact you as a result of inaccurate account information.


10. Changes to Terms of Service

10.1. Notice of Updated Terms. We may, on one or more occasions, change or modify the features or pricing of the Services. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Website.

10.2. Acceptance of Updated Terms. You should review these Terms of Service and any Updated Terms before using the Website. Your use of the Website after the effective date of the Updated Terms constitutes your agreement to the Updated Terms.

10.3. Effective Date of Updated Terms. The Updated Terms will be effective as of either the time of posting or a later date if specified in the Updated Terms.


11. Payment Obligations

11.1. Fees

(a) Fees for Services. You will pay us all charges attributable to your use of the Services at our then-current rates for those Services. [You will be responsible for paying any related banking fees for returned payments.]

(b) Fees Outside of Service. Work requests falling outside the scope of these Terms of Service will be subject to the appropriate fees as determined by One Firefly.

11.2. Payment

(a) Payment of Fees. Payment is required in advance (either monthly or annually, depending on client’s choice of billing frequency).  One Firefly reserves the right to take a site offline due to non-payment.

(b) Collection Enforcement. You will be liable for all legal and other expenses associated with collecting any overdue fees.


12. Client Acknowledgements:

You acknowledge to us as follows:

12.1. Terms of Services Agreement. You have read and agree to be bound by the Terms of Services as defined in this agreement.

12.2. Hosting: Your website must be hosted with One Firefly to receive services under this agreement.

12.3. Account Security. While One Firefly takes all reasonable measures to secure your website, we cannot guarantee that unauthorized third parties will never be able to defeat the Site's security measures or to use any personal information you provide to us for improper purposes. You acknowledge that you provide your personal information to us at your own risk.

12.4. No Endorsement of Client Content. By providing the Services, we in no way endorse the Website or its contents, unless otherwise expressed by One Firefly.

12.5. Intellectual Property Rights

(a) Rights to Client Content. All Client Content remains your sole property; we do not acquire any interest in it.

(b) License to Client Content. You hereby grant to us a non-exclusive, worldwide, royalty-free license to modify the Client Content as we may reasonably require to provide the Services. In providing the Services, we may backup of cache Client Content (including content supplied by third parties). You acknowledge that any such backups or caching does not constitute an infringement of any of the intellectual property or other rights of you or any third party.

(c) Rights to Host Materials. All Host Materials remain the sole property of us or our suppliers. You do not acquire any interest in the Host Materials other than the rights that are granted to you under these Terms of Service. If the ownership of any of the Host Materials for any reason does not automatically vest in us, you hereby assign to us any interest that you may have in and to them.

12.6. IP Numbers. We maintain and control ownership of all Internet protocol (IP) numbers and addresses that may be assigned to you. We may therefore on one or more occasions change or remove any IP numbers or addresses.

12.7. Disclosure by Host

(a) Necessary or Appropriate Disclosure. To comply with applicable Laws and lawful governmental requests, to protect our systems and clients, and to ensure the integrity and operation of our business and systems, we may

(i) access and disclose to the appropriate authorities or other appropriate third parties any information that we consider necessary or appropriate (including user profile information, IP addresses and traffic information, usage history, and other content residing on our servers and systems), and
(ii) report to those authorities and third parties any activity that we suspect violates or may violate any Law.

(b) Conflict with Privacy Policy. If any inconsistency exists between any terms of our Privacy Policy and our right to disclose under this section, the terms of this section will prevail.

12.8. No Control over Internet. We exercise no control over, and accept no responsibility for, the content of the information passing through our host computers, network hubs and points of presence, or the Internet.

12.9. Links. The Website may contain links to third-party websites or resources. You acknowledge that we are not responsible or liable for (a) the availability or accuracy of those websites or resources, or (b) the content, products, or services on or available from them. Links to those websites or resources do not imply any endorsement by us of those websites or resources. You are solely responsibility for and assume all risk arising from your use of any of those websites or resources.

12.10. Responsibility for Providing Services. We are responsible only for providing the Services; we are not responsible for providing any other services not expressly required under these Terms of Service.

12.11. Compliance with Local Laws. Our Services are controlled and offered from facilities in the United States of America. We make no representation that any Services are appropriate or available for use in other locations. If you access or use the Services from other jurisdictions, you do so at your choice and you are responsible for compliance with local Law.


13. Confidentiality

13.1. Confidentiality Obligations. The receiving party will hold all Confidential Information in confidence in accordance with the terms of these Terms of Service.

13.2. Use Solely for Purpose. The receiving party will use the Confidential Information solely for the purpose of performing its obligations under these Terms of Service.

13.3. Permitted Disclosure. The receiving party may disclose Confidential Information to its representatives but only

(a) to the extent necessary to carry out the Purpose,

(b) if the receiving party first informs them of, and directs them to maintain, its confidential nature in accordance with the terms of these Terms of Service[, and

(c) upon the disclosing party's request in connection with any of the receiving party's representatives[ other than a director, officer, shareholder, partner, or employee], if they each first enter into separate written agreements to that effect[ in a form acceptable to the disclosing party].

13.4. Required Disclosure. The receiving party may disclose Confidential Information to a third party if it is required to do so by Law but only if, before that disclosure, the receiving party, to the extent permitted by Law,

(a) gives the disclosing party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the receiving party's compliance with this section,

(b) reasonably cooperates with the disclosing party[, at the disclosing party's expense,] in its reasonable efforts to obtain a protective order or other appropriate remedy,

(c) discloses only that portion of the Confidential Information that[, having consulted with its counsel,] it is legally required to disclose, and

(d) uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

13.5. Value and Nature of Confidential Information. The parties acknowledge that the Confidential Information is proprietary and has competitive value. Accordingly, any disclosure to the disclosing party's competitors or to the public would be detrimental to the best interests of the disclosing party, which may incur losses, costs, and damages as a result.

13.6. Burden of Proof. The receiving party will have the burden of proof relating to all exceptions to the definition of Confidential Information. The receiving party may rely on its own written records in support of its position.


14. Claims

14.1. Our Response to Claims. We respect the intellectual property rights of others and expect all users of the Service to do the same. We may investigate any claim of violation of this agreement or our published policies and take any action that we deem appropriate and reasonable in the circumstances to protect our systems and facilities, our customers, and third parties. We will respond to claims made by any third party of alleged infringement of their intellectual property or other rights if the claims comply with applicable Law and are properly provided to us.

14.2. Our Actions. If we become aware of any possible violation by you of this agreement, any related policies, third party rights, or laws, we may, after reasonable investigation, immediately take any corrective action we deem appropriate and reasonable under the circumstance, such as

(a) issuing warnings to you,

(b) suspending or terminating your Services,

(c) restricting or prohibiting any or all of Your Content, and

(d) restricting or removing from our servers any content that

(i) violates this agreement or any of our published policies, or is otherwise objectionable, or
(ii) we reasonably believe may violate or infringe any Law or the rights of any third party or that otherwise exposes or potentially exposes us to civil or criminal liability or public ridicule.

14.3. Our Actions. If we take any corrective action as outlined in section 10.2 (Our Actions), we will not be obligated to refund to you any fees paid in advance of our action.


15.  Indemnification

15.1. Your Indemnity. You will indemnify us and our directors, officers, employees, shareholders, partners, agents, and affiliates, against all claims, liability, costs, and expenses (including legal fees)

(a) for damages caused to our systems by Your Content, and

(b) arising from any third party claim or proceeding brought against us

(i) alleging your actual or alleged infringement or misappropriation of any intellectual property or other rights of a third party that relates to or arises out of your use of the Services or your operation of the Website,
(ii) for any injury to person or property caused by any products that you sold or otherwise distributed by using the Services, or
(iii) based on or related to your use of the Services in breach of this agreement, for an unlawful purpose, or in a manner otherwise contrary to Law.

15.2. Notice of Claim. A party will give prompt Notice to the other party of any claim or potential claim for indemnification under this section.

15.3. Exclusive Remedies. The rights granted under this section 11 (Indemnification) are the exclusive remedies available under this agreement in connection with the claims and losses that this section addresses.

16. Interruptions of Service.

Neither we nor our suppliers will be liable for any temporary delay, outages, or interruptions of the Services.

17. Force Majeure.

We will not be liable for any delay or failure to perform our obligations under these Terms of Service where the delay or failure results from Force Majeure.


18.  Suspected Breach of Service Terms

18.1. Actions. If we reasonably suspect that you have engaged in any Prohibited Use, then upon our investigation of the matter, we may do any or all of the following:

(a) amend or delete the relevant Client Content,

(b) suspend any of the Services, and

(c) suspend your access to any of the Services.

18.2. Extent of Investigations. We are only required to conduct reasonable investigations into your suspected breach before being entitled to take action under this section.


19. Prohibited Use of Services

19.1 Plugins

CMS platforms use powerful plugins to extend the functionality of the platform. Our service permits the installation and use of plugins that are both supported by the CMS platform, and that implement with the platform’s update system.  If the plugin does not meet both of those standards, then its installation is strictly prohibited; such plugins cannot be managed and pose significant risk to the security of your site, and the overall health of the server. If these plugins are discovered on the server, One Firefly reserves the right to…

(a) uninstall unsupported plugins

(b) suspend your websites account (you will still be responsible for fees during this suspension period, unless or until services are terminated)


19.2. Installing Other Websites

Due to the managed nature of our services, this agreement only covers the site/s associated with your agreement.  The installation of any other website/s onto your server account is strictly prohibited.

19.3 Content Restrictions

You are free to store most common files on your server, however, the server is not intended to be used for personal storage or as a third party receptacle.  You are free to store files on your server so long as…

(a) files do not exhaust the storage limits of the account

(b) files are associated with the website and the services we provide

(c) files are not associated with third party services


19.4 File Types (or File Systems)

There are limitations to the types of files (or file systems) you may store. Some files may not be associated with your website, or services, and might even run functions or commands in the background that call or, or even exhaust, server resources.  If such files (or file systems) are deemed not to be associated with the services we provide or cover under this agreement, and/or are otherwise determined to have execution of functions that demand resources on the server inconsistent with the services we provide, One Firefly reserves the right to…

(a)    remove these files (or file systems) from the server

(b)    suspend your websites account (you will still be responsible for fees during this suspension period, unless or until services are terminated)


19.5 Email Server

As website hosting is for websites, email hosting is for email; these are separate services and should be serviced as such.  Due to the safety concerns that email servers present, we take precautions in the setup and function of our servers by eliminating the use of the webserver as an email server. To achieve a higher level of security on our servers, the email function (specifically the “exim” on the server that controls the email functionality) is disabled to prevent email phishing, high-jacking of vulnerable email accounts, or any otherwise malicious activity that can exploit the functionality of a webserver’s email functionality.


20. Limitation of Liability

20.1. Foreseeability. Neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entering into these Terms of Service.

20.2. No Liability. We will not be liable for any action we take in good faith to restrict transmission of material that we or any other client reasonably consider to be in breach of our Acceptable Use Policy, whether or not the material is constitutionally protected.

20.3. Limitation of Liability. Our maximum aggregate liability to you under these Terms of Service is limited to the amount that you have actually paid us under these Terms of Service for the services related to the particular cause of action during the [six] months immediately preceding the date on which your claim for liability arose. This limitation applies to all claims of liability that you may have against us, even if we have been advised of the possibility of damage to you, and to the fullest extent possible under applicable Law.

20.4. Other Jurisdictions. For clients in jurisdictions that have rules relating to limitations or waivers of liability, our liability is limited to the least amount available under applicable Law. Specifically, in those jurisdictions, we do not disclaim liability for (a) death or personal injury caused by our negligence or that of any of our officers, employees, or agents, (b) fraudulent misrepresentation or intentional misconduct, or (c) any liability that it is not lawful to exclude, now or in the future.


21. Termination

21.1. Termination upon Notice. Either party may terminate these Terms of Service for any reason upon [thirty] business days' Notice to the other party.

21.2. Termination upon Breach

(a) Failure to Pay. If you fail to pay when due any amount owing under these Terms of Service and that failure continues for [five] business days, we may, in addition to any other remedies available to us, terminate these Terms of Service, with immediate effect, by giving you Notice.

(b) Any Other Breach. If one party

(i) commits any material breach or material default in the performance of any obligation under these Terms of Service (other than your obligation to pay money), and
(ii) the breach or default continues for a period of [thirty business days after the other party delivers Notice reasonably detailing the breach or default,
then the other party may terminate these Terms of Service, with immediate effect, by giving Notice to the first party.

21.3. Termination upon Your Insolvency. These Terms of Service will immediately terminate immediately upon the occurrence of your insolvency, bankruptcy, receivership, dissolution, or liquidation.

22. Effect of Termination

Upon termination or expiration of these Terms of Service, the following terms apply:

22.1. Termination of Services. We may immediately, without Notice, suspend, restrict, or terminate the Services, delete content, or take any other action we consider appropriate in the circumstances.

22.2. Return of our Confidential Information. You will, at our request, return all our Confidential Information, both originals and copies, under your direct or indirect control or, if we agree, certify to us its complete destruction.

22.3. Unpaid Fees. You will pay all unpaid and outstanding fees through the effective date of termination or expiration.

22.4. Refund of Fees. If we terminate these Terms of Service, we will refund to you the pro-rata portion of prepaid fees attributable to Services not yet rendered as of the termination date. If you terminate these Terms of Service by Notice in accordance with these Terms of Service,

(a) we will not refund any prepaid fees, and

(b) you will pay100% of our standard monthly charge for each month remaining in the term.

22.5. Transition Services. Except in the case of termination of the agreement as a result of a material breach or material default in the performance of any of your obligations under these Terms of Service, we will keep the Website publicly accessible for a period of [30] days following the date of termination or expiration. We may, if you request, provide you with transition services at our then-current rates.


23. Definitions

In these Terms of Service, the following definitions apply:

23.1. "Acceptable Use Policy" means our Acceptable Use Policy, which is published on our website at [URL OF ACCEPTABLE USE POLICY], as we may amend or replace it on one or more occasions.

23.2. "Website Content" means all materials comprising the Website (including images, photographs, illustrations, graphics, audio clips, video clips, and text uploaded to the Website).

23.3. "Confidential Information" means all information that the parties would reasonably expect to be considered confidential, but does not include information that

(a) is or becomes publicly known through no wrongful act of the receiving party,

(b) the receiving party received in good faith on a non-confidential basis from a source other than the disclosing party or its representatives,

(c) was in the receiving party's possession before its disclosure by the disclosing party or its representatives,

(d) the receiving party developed independently without breach of these Terms of Service, or

(e) the disclosing party has explicitly approved, by Notice to the receiving party, for release to a third party.

23.4. "Client Content" means all data and other materials (including all intellectual property and other rights) that you provide to us in connection with providing the Services.

23.5. "Description of Fees and Services" means the itemization of our Services, and their corresponding fees, that you have agreed to.

23.6. "DMCA" means the Digital Millennium Copyright Act.

23.7. "Force Majeure" means any event (including any mechanical, electronic, communications, or third-party supplier failure) that

(a) is beyond the reasonable control of a party,

(b) materially affects the performance of any of its obligations under these Terms of Service, and

(c) could not reasonably have been foreseen or provided against,
but does not include general economic or other conditions affecting financial markets generally.

23.8. "Host Marks" means the design, trademarks, service marks, and logos that the Host uses in providing the Services.

23.9. "Host Materials" means any

(a) materials (including equipment, software, data, and information) developed or provided by us or our suppliers,

(b) know-how, methodologies, or processes that we use to provide the Services, and

(c) intellectual property or other rights in or to any of them.

23.10. "Law" means

(a) any law (including the common law), statute, by-law, rule, regulation, order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any governmental authority having the force of law.

23.11. "Notice" means any notice, request, direction, or other document that a party can or must make or give under this agreement.

23.12. "Person" includes

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and

(b) any individual.

23.13. "Privacy Policy" means our Privacy Policy published on our website at [URL OF PRIVACY POLICY], as it may be amended or replaced on one or more occasions.

23.14. "Service Levels" means the service levels, response times, and other performance criteria detailed on the Description of Fees and Services.

23.15. "Services" means the website hosting services provided to you as detailed in the Description of Fees and Services.

23.16. "Site" means the Host's site [HOST'S URL].

23.17. "Website" means the Website associated with these Terms of Service and identified in the Description of Fees and Services.

23.18. “Third Party Hosting” - All other Hosting providers, other than One Firefly, are classified by Firm as Third Party Hosting providers.


24. General Provisions

24.1. Entire Agreement. These Terms of Service contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.

24.2. Amendment. These Terms of Service may only be amended by a written document signed by both parties.

24.3. Assignment. You may not assign these Terms of Service or any of its rights under it. We may assign these Terms of Service or any of its rights without notice or the need for your consent.

24.4. No Partnership. Nothing contained in these Terms of Service creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties.

24.5. Third Party Beneficiaries. The Indemnification terms of these Terms of Service confer rights and remedies upon our directors, officers, employees, shareholders, partners, agents or affiliates. No person other than the parties themselves and those beneficiaries has any rights or remedies under these Terms of Service.

24.6. Notices

(a) Form of Notice. All notices and other communications between the parties must be in writing.

(b) Method of Notice. Notices must be given by

(i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in these Terms of Service, or to the address that a party has notified to be that party's address for the purposes of this section.

(c) Receipt of Notice. A notice given in accordance with these Terms of Service will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth Business Day following mailing.

24.7. Remedies Cumulative. Except as provided in this Terms of Service (Exclusive Remedies), the rights and remedies available to a party under these Terms of Service are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.

24.8. Survival. Sections (Confidentiality), (Indemnification), and (Effect of Termination) survive the termination or expiration of these Terms of Service.

24.9. Severability. If any part of these Terms of Service is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

24.10. Waiver. A party's failure or neglect to enforce any of rights under these Terms of Service will not be deemed to be a waiver of that party's rights.

24.11. Equitable Relief. Each party acknowledges that its breach or threatened breach of any its obligations under section (Confidentiality) would not be susceptible to adequate relief by way of monetary damages only. Accordingly, the non-breaching party may, in that case, apply to court for any applicable equitable remedies (including injunctive relief), without the need to post any security.

24.12. Governing Law. These Terms of Service will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE ], without regard to its conflict of laws rules.

24.13. Dispute Resolution

(a) Arbitration. Any dispute or controversy arising under or in connection with this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).

(b) No Punitive Damages. The arbitrator(s) will not have the power to award punitive damages.

(c) Judgment. The successful party may enter the arbitral judgment in any court having jurisdiction.

24.14. Waiver of Jury Trial. Each party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to these Terms of Service or the transactions relating to its subject matter.

24.15. Attorney Fees. If either party brings legal action to enforce its rights under these Terms of Service, the prevailing party will be entitled to recover its costs and expenses (including reasonable attorneys' fees) incurred in connection with the action and any appeal.

24.16. Interpretation

(a) Currency. Unless otherwise specified, all dollar amounts expressed in these Terms of Service refer to American currency.

(b) Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa, words importing gender include all genders.

(c) Headings. The headings used in these Terms of Service and its division into sections, schedules, and other subdivisions do not affect its interpretation.

(d) Internal References. References in these Terms of Service to sections, and other subdivisions are to those parts of these Terms of Service.


25. Term

Following the initial term, these Terms of Service will automatically renew for successive [yearly] terms, unless terminated earlier.

 

 

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