FatCow's User Agreement
This User Agreement ("Agreement") is an agreement between FatCow and the party set forth in the related Registration Form ("User" or "You" and "Your") incorporated herein by reference (together with any subsequent Registration Forms or other online signup, acceptance or order form submitted by User, the "Registration Form"), and applies to the purchase of all services ordered by User on the Registration Form (collectively, the "Services"). As used herein the term "User" and "You" shall also include any and all users, Customers, subscribers, affiliates (including without limitations Users or non-Users to whom FatCow provides links or banners to promote the services or products of FatCow or any third party the services or products of which are offered by or obtained through or in connection with FatCow), resellers or others (i) who sign up for, use or obtain services or products from FatCow or from any third party services or products of which are offered by or obtained through or in connection with FatCow, or (ii) who visit the Web sites of FatCow or of any such third party.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR ACCEPTABLE USE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Acceptable Use Policy.
Under this Agreement, User shall comply with FatCow's then current Acceptable Use Policy ("AUP"), as amended, modified or updated from time to time by FatCow, and other agreements which currently can be viewed under the Terms of Service section of this Web site (collectively, the "Terms of Service"), and which is incorporated in this Agreement by reference. User 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. FatCow does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by User via the Service (the "User Content"). User Content includes content of User's and/or users of User's Web site. Accordingly, under this Agreement, You will be responsible for Your users content and activities on Your Web site. Notwithstanding anything to the contrary contained in this Agreement, FatCow may immediately take corrective action, including removal of all or a portion of the User Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by User of the AUP. In the event FatCow takes corrective action due to a violation of the AUP, FatCow shall not refund to User any fees paid in advance of such corrective action. User hereby agrees that FatCow shall have no liability to User or any of User's users due to any corrective action that FatCow may take (including, without limitation, suspension, termination or disconnection of Services).
- HIPAA Disclaimer. We are not “HIPAA compliant. You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. FatCow does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that FatCow is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, email us.
Term; Termination; Cancellation Policy.
- The initial term of this Agreement shall be as set forth in the Registration Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to User, and after the Initial Term, this Agreement shall continue for successive periods (or renewal period) of equal length as the Initial Term OR SUCH OTHER TERM AND PRICE THAT SHALL BE SET FORTH IN A NOTICE TO THE CUSTOMER AT LEAST 24 hours PRIOR TO the commencement of such successive period or RENEWAL period. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE or renewal PERIODS, 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 or cancelled;
at anytime by either party (Including by You, if you receive notice of an amendment to this Agreement) by giving the other party thirty (30) days prior written notice, provided that we may charge You a minimum $35.00 charge as an early cancellation fee.
If an account with a thirty (30) day money-back guarantee is purchased and cancelled within thirty (30) days of sign-up, the User will, upon request, receive a full refund of all hosting fees. Requests for these refunds should be made through our Support Team. Refunds made for a thirty (30) day money-back guarantee will not include domain registration fees or setup fees, nor will they include any fees for additional services that are purchased in the first thirty (30) days. If your plan includes a free domain name and You cancel within the first 30 days, a fee for the domain (and any applicable taxes) will be deducted from your refund. If you do not wish to keep the domain name, FatCow will take possession of the domain and the fee will not be charged.
The thirty (30) day money-back guarantee is valid for credit-card payments only. Due to the costs associated with processing payments made by other methods, we are not able to offer the thirty (30) day money-back guarantee for other payment methods.
- by FatCow in the event of nonpayment by User,
- by FatCow, at any time, without notice, if, in FatCow's sole and absolute discretion and/or judgment, User is in violation of any term or condition of this Agreement and related agreements, AUP, or User's use of the Services disrupts or, in FatCow's sole and absolute discretion and/or judgment, could disrupt, FatCow's business operations and/or
- by FatCow as provided herein.
If You cancel this Agreement, upon proper notice to FatCow, prior to the end of the Initial Term or any successive period (or renewal period) thereafter,
- You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
FatCow may (but is not obligated to) refund to You all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees, cancellation fees, and any applicable taxes and any discount applied for prepayment, provided that You are not in breach of any terms and conditions of this AUP, User Agreement, Anti-Spamming Policy or Domain Policy;
If your plan includes a free domain name, a fee for the domain and any applicable taxes will be deducted from your refund. If you do not wish to keep the domain name, FatCow will take possession of the domain and the fee will not be charged.
- We may charge You one hundred percent (100%) of all charges for all Services for each month remaining in the then-current Term (other than basic hosting fees as provided in (ii) above).
- Any cancellation request shall be effective thirty (30) days after receipt by FatCow, unless a later date is specified in such request.
FatCow may terminate this Agreement, without penalty,
- if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, Terms of Service or regulatory reason, by giving User as much prior notice as reasonably practicable; or
- 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 3(e), 4, 5, 15, 16, 20, 22 and 24 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding 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 Terms of Service or equitable rights or remedies to which FatCow may be entitled.
- UPON TERMINATION OF THIS AGREEMENT FOR ANY CAUSE OR REASON WHATSOEVER, USER WEB SITE FILES AND USER CONTENT AND OTHER DATA IS DELETED UPON ACCOUNT TERMINATION. Accordingly, User should always maintain back-up copies of User's web site and other User content and data so User may use such copies host elsewhere after such termination.
- You have ninety (90) days to dispute any charge or payment processed by FatCow. If you have a question concerning a charge you believe is incorrect, please contact us at 888.278.9780 or through our chat service anytime by selecting our billing assistance option.
- User is solely responsible for the quality, performance and all other aspects of the User Content and the goods or services provided through the User Web site.
- User will cooperate fully with FatCow in connection with FatCow's provision of the Services. User must provide any equipment or software that may be necessary for User to use the Services. Delays in User's performance of its obligations under this Agreement will extend the time for FatCow's performance of its obligations that depend on User's performance on a day for day basis. User must provide complete, correct and genuine contact information in the Registration Form and update such information as necessary from time to time so it remains complete, correct and genuine at all times; failure to do so may result in suspension or cancellation of Services. User will notify FatCow of any change in User's mailing address, telephone, electronic mail or other contact information.
- User assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the User Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
- Because the Services permit Users to electronically transmit or upload content directly to the User Web site, User shall be fully responsible for uploading all content to the User Web site and supplementing, modifying and updating the User Web site, including all back-ups. User is also responsible for ensuring that the User Content and all aspects of the User Web site are compatible with the hardware and software used by FatCow to provide the Services, as the same may be changed by FatCow from time to time. FatCow shall not be responsible for any damages to the User Content, the User Web site or other damages or any malfunctions or service interruptions caused by any failure of the User Content or any aspect of the User Web site to be compatible with the hardware and software used by FatCow to provide the Services.
- User is solely responsible for making back-up copies of the User Web site and User Content.
- FatCow does not maintain backup copies of User Web sites or e-mail. FatCow cannot guarantee that the contents of a Web site will never be deleted or corrupted, or that a backup of a Web site will always be available. Users should always copy all content of a Web site to a local computer and FatCow strongly suggest that Users make an additional copy (on tape, CD, multiple floppy disks, another desktop, or elsewhere) to ensure the availability of the files. IT IS THE USER'S SOLE RESPONSIBILITY TO MAKE OFFLINE, BACK-UP COPIES OF THE USER'S WEB SITE AND USER CONTENT AND DATA. NOTE: IT IS ESSENTIAL THAT USERS BACKUP FILES OFFLINE, EVEN IF USER PURCHASES OR HAS PRODUCTS, SUCH AS SITE BACKUP AND RESTORE.
The user is responsible for maintaining complete backups for any files, content, software, or other items stored from time to time in a VPS account or VPS container. FatCow does not maintain such back-ups.
As part of FatCow's ongoing hosting, FatCow does create and store on a temporary basis VPS backups which are intended for FatCow's disaster recovery only which are typically available only in the event of hardware failure, and only for a short period thereafter. FatCow cannot guarantee the existence, accuracy or completeness of any backups. Please note that typically a complete VPS restoration will overwrite anything stored in your VPS account.
- User is responsible for maintaining the confidentiality of login and billing information. FatCow is not liable for any account disputes that may arise between various parties holding account login information. FatCow is not responsible for any changes made to the account or any information that has been modified by User, or any parties authorized by User, to access the Control Panel. User is responsible for updating and maintaining contact and billing information with FatCow. Any changes to the User contact information must be made using the account Control Panel or by contacting our Support Team. User is responsible for ensuring that FatCow is able to notify the User for technical, billing or other issues or purposes deemed necessary by FatCow to maintain the account.
- Free Web Hosting. If you have enrolled in a free plan, your Web site may carry advertising HTML for FatCow or a third party, which could include different types of advertisements, including banners or pop-ups. If you would prefer not to have such advertising on your Web site, we encourage you to sign up for a plan that does not include advertising. Our Support Team can help you choose the plan that is right for you
User's Representations and Warranties.
User hereby represents and warrants to FatCow, and agrees that during
the Initial Term and any Term thereafter User will ensure that:
- User is the owner or valid licensee of the User Content and each element thereof, and User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the User Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by FatCow to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
- User's use, publication and display of the User 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;
- User will comply with all applicable laws, rules and regulations regarding the User Content and the User Web site and will use the User Web site only for lawful purposes; and
- User has used its best efforts to ensure that the User Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
User shall be solely responsible for the development, operation and maintenance of
User's Web site, online store and electronic commerce activities, for all products
and services offered by User or appearing online and for all contents and materials
appearing online or on User's products, including, without limitation
- the accuracy and appropriateness of the User Content and content and material appearing in its store or on its products,
- ensuring that the User 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 User Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. User shall be solely responsible for accepting, processing and filling User orders and for handling User inquiries or complaints. User shall be solely responsible for the payment or satisfaction of any and all taxes associated with its Web site and online store.
- User grants FatCow the right to reproduce, copy, use and distribute all and any portion of the User Content to the extent needed to provide and operate the Services
- In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your account, whether or not the transactions were on Your behalf.
- FOR MASSACHUSETTS RESIDENTS ONLY: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of user's in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [5.e ], "personal information" means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver's license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
- FOR CUSTOMERS OTHER THAN MASSACHUSETTS RESIDENTS: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of User's customers in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [5.f ], "personal information" means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver's license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
- User hereby represents and warrants to FatCow, and agrees that during the Initial Term and any Term thereafter User will ensure that:
License to FatCow. User hereby grants to FatCow 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, except that with respect to
personal information included in the User Content, such license shall be limited to
- 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 User Content; and
- make archival or back-up copies of the User Content and the User Web site.
- Except for the rights expressly granted above, FatCow is not acquiring any right, title or interest in or to the User Content, all of which shall remain solely with User.
- FatCow, 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, User 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. User further agrees that FatCow shall not be liable to User for any loss or damages that may result from such conduct.
- FatCow Content. Except for User Content, all content available through the Services including without limitation any site builder tools, website templates, themes, designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, "FatCow Content"), are the proprietary property of FatCow or its licensors. No FatCow Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted by FatCow. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any FatCow Content. Any use of the FatCow Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to use of the Services and the FatCow Content granted herein. All rights of FatCow or its licensors that are not expressly granted in this Agreement are reserved to FatCow and its licensors.
- Licenses, Copyright Notices and Photo Credits. Any permitted use of FatCow Content is subject to the terms of any applicable license. Users shall not remove any copyright notices or photo credits appearing on any FatCow Content that Users have been granted the right to use. Any violation of this section will be deemed a breach of this Agreement.
Billing and Payment.
- User will pay to FatCow the service fees for the Services in the manner set forth in the Registration Form.
- Please note that special offers are limited-time promotional prices that are available to new customers and are valid for the Initial Term only, and not for successive or renewal periods. You will be notified of your pricing for EACH successive period (or renewal period) prior to the start of SUCH successive period (or renewal period). Your pricing for SUCH successive period (or renewal period) ALSO will be available through your control panel at the start of such successive period (or renewal period). FatCow may increase the Service Fee and Product fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term by providing 24 hours prior written notice thereof to User. Written notice may be in the form of (i) notices and updates in the User's Control Panel , (ii) Public Alerts issued by FatCow, (iii) Notification of Successive Period Pricing ( or RENEWAL period pricing), or [(iv) posting of next scheduled rebill amount in User's Billing Central]. It is the User's sole responsibility to periodically review User's Billing Central information and all other methods of communications and notices sent or posted by FatCow. User may always check the User's Billing Central area to get an up-to-date statement of the current amount being billed to User for Services. It is the User's sole responsibility to periodically review users Billing Central information.
- 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 FatCow's net income). All such taxes may be added to FatCow's invoices for the fees as separate charges to be paid by User. All fees are fully earned when due and non-refundable when paid.
- Unless otherwise specified, all initial fees shall be payable upon sign-up, and all subsequent fees and related charges shall be due and payable when billed, if by credit card, or if not by credit card, within thirty (30) days after the date of the invoice.
- If FatCow collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if FatCow prevails in any action to which the User and FatCow are parties, User will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and FatCow's reasonable attorneys' fees.
- If any check is returned for insufficient funds FatCow may impose a minimum processing charge of $25.00 plus any applicable taxes.
- In the event that any amount due to FatCow is not paid when due, FatCow, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. NOTE: USER WEB SITE FILES AND USER CONTENT AND OTHER DATA IS DELETED UPON ACCOUNT TERMINATION.
- There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers will be assessed a minimum charge of $35.00 plus applicable taxes.
- There may be a minimum charge of $35.00 plus applicable taxes for all credit card chargebacks.
- User acknowledges and agrees that FatCow may pre-charge User's fees for Services and products to its credit card supplied by User during registration for the Initial Term.
- YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION.
Free Trial Terms. If you signed up for a free trial, the following terms and conditions apply to your free trial offer.
- Following the expiration of your trial period, you will be automatically charged for the remainder of the term using the credit card you previously provided unless you cancel the Services prior to the expiration of the trial period.
- If you have not provided FatCow with your credit card information and you have not decided to purchase the Services prior to the expiration of the trial, the Services will not be automatically renewed and your access to your website and files may be limited or terminated completely upon expiration.
Payment Policies - General
- Accounts will not be activated or reactivated without prior payment.
- All hosting fees and domain name renewal fees are due at time of invoice for the renewing account and/or domain name.
- Incomplete, incorrect or questionable signup information can result in an account being suspended or terminated or NOT being activated. Some accounts may be placed on hold for up to 72 hours, pending review of information received.
- Any losses or expenses experienced by the User, due to actions taken by FatCow in response to Users non-payment, are not the responsibility of FatCow.
- Unless stated otherwise, a reference to 'USD$', '$US', 'dollar' or '$' is a reference to USA currency. All fees or other amounts hereunder shall be payable in US currency, provided however that in the event you signed up for your account or any other product or service for which the fee or other amount is payable in a currency other than $US, then any amounts payable by you hereunder shall be payable in such other currency.
Payment Policies - Payment Processing
- FatCow's preferred method of payment is credit card.
- By purchasing our services, you are agreeing to allow FatCow to place your account on a recurring payment plan. The account will automatically be re-billed according to the terms of the plan, products or services you select. By continuing (or renewing) your services and products you further agree to all of FatCow's Terms of Services and any price increases.
- You grant FatCow permission to charge your credit card for any and all services you request, including, but not limited to, any and all product or service.
- If we are unable to process a payment for your plan, product or service by its due date, your account will be cancelled for non-payment and you will not be able to access your Web site or e-mail.
- WHEN AN ACCOUNT IS CANCELED, ALL COPIES OF THE WEB SITE AND E-MAIL FILES ARE PERMANENTLY AND IRRETRIEVABLY REMOVED FROM OUR SERVERS UPON ACCOUNT CANCELLATION.
- If an account has been suspended for non-payment, it will only be reactivated upon payment of all overdue fees. Upon reactivation, we are not responsible for any deleted Web site or Content.
- If we make any refunds due to charges you dispute with your credit card FatCow, we will cancel your account. The cancelled account will only be reactivated once all disputed/refunded fees are resolved satisfactorily, and we receive payment for any and all administrative fees incurred by FatCow as a result of your dispute or charge-back request. We cannot guarantee any files or e-mail will be available upon reactivation.
- It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. A determination of such misuse or fraudulent use shall be in our sole discretion. Further, we may report all such misuses and fraudulent uses (as determined by us in our sole discretion) to appropriate government and law enforcement authorities, credit reporting services, financial institutions and credit card companies.
- FatCow as Reseller or Licensor. FatCow is acting only as a reseller or licensor of certain services, 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-FatCow Product"). FatCow shall not be responsible for any changes in the Services that cause the Non-FatCow Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-FatCow Product either sold, licensed or provided by FatCow to User or purchased directly by User used in connection with the Services will not be deemed a breach of FatCow's obligations under this Agreement. Any rights or remedies User may have regarding the ownership, licensing, performance or compliance of Non-FatCow Product are limited to those rights extended to User by the manufacturer of such Non-FatCow Product. User is entitled to use any Non-FatCow Product supplied by FatCow only in connection with User's permitted use of the Services. User shall use its best efforts to protect and keep confidential all intellectual property provided by FatCow to User through any Non-FatCow 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. User shall not resell, transfer, export or re-export any Non-FatCow Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
- Internet Protocol (IP) Address Ownership. If FatCow assigns User an Internet Protocol ("IP") address for User's use, the right to use that IP address shall belong only to FatCow, and User shall have no right to use that IP address except as permitted by FatCow in its sole and absolute discretion in connection with the Services, during the term of this Agreement. FatCow shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to User by FatCow, and FatCow reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Caching. User expressly;
- grants to FatCow a license to cache the entirety of the User Content and User's Web site, including content supplied by third parties, hosted by FatCow under this Agreement and
- agrees that such caching is not an infringement of any of User's intellectual property rights or any third party's intellectual property rights.
- CPU Usage. User agrees that User shall not use excessive amounts of CPU processing on any of FatCow's servers. Any violation of this policy may result in corrective action by FatCow, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in FatCow's sole and absolute discretion. If FatCow takes any corrective action under this section, User shall not be entitled to a refund of any fees paid in advance prior to such action.
Bandwidth and Disk Usage. FatCow provides Users with bandwidth, disk space and other resources, such as e-mail and/or file-transfer-protocol ("FTP") accounts, the amount of which is defined in FatCow's web pages describing the package of Services purchased at the time of purchase. In some cases, FatCow may not establish a specific amount of bandwidth, disk space and other resources, and refer to that as "Unlimited". In all cases, the Services are intended for normal use only, and any activity that results in excessive usage that is inconsistent with normal usage patterns is strictly prohibited. FatCow reserves the right to suspend, discontinue or delete the accounts of Users whose use of disk space, bandwidth or other resources results in or presents the risk of degradation of service to other customers, regardless of the amount of disk space, bandwidth or other resources included in the User's plan. User agrees that such usage shall not exceed the amounts set by FatCow for the Services purchased (the "Agreed Usage") and is additionally subject to normal usage guidelines established by FatCow as in effect from time to time. These allotments are optimized and dedicated towards serving the Content and User's active electronic mail services related solely to User's web hosting account(s) with FatCow.
Hosting space is intended for normal use only, and is limited to Web files, active e-mail and content of the hosted Web sites, not for storage (whether of media, e-mails, or other data). Hosting space further may not be used as offsite storage of electronic files, electronic mail or FTP hosts. You are responsible for removing any files, e-mails or other data which do not meet these requirements, and for adhering to any usage requirements or limits allocated to your account(s). Failure to do so may result in removal and deletion of such materials (including without limitation files and e-mails), and/or in discontinuation of your services or account, which actions we may take in our sole discretion.
FatCow will monitor User's use of bandwidth, disk usage and other resources. FatCow, in its sole discretion, shall have the right to take any corrective action if User's utilization of bandwidth, disk usage or other resources exceeds the Agreed Usage, normal usage, or is used for 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 User's Web site, User Content, User's electronic mail and e-mail services and/or other materials and services or termination the User's account and of this Agreement, which actions may be taken in FatCow's sole and absolute discretion.
If FatCow takes any such corrective action under this section, User shall not be entitled to a refund or credit of any fees paid prior to such action. User will comply with all applicable laws, rules and regulations regarding User's Web site, User Content and/or User's electronic mail services, including use of bandwidth, disk usage and other resources and will use such services and resources only for lawful purposes. User 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, gambling, obscene materials or any other products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States (or, if User is outside the United States, to points outside the User's national jurisdiction) 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 FatCow learns or discovers that User is violating any law related to User's Web site, User Content and/or User's electronic mail services, use of bandwidth, disk usage or other resources or Agreed Usage, FatCow may be obligated to or may in its discretion inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to User, User's Web site, User Content and/or User's electronic mail.
User is responsible for complying with any usage requirements or limits for bandwidth, disk space or other resources, and monitoring such usage to ensure the Web site does not violate such requirements or exceed any such limits allocated for the account(s) and otherwise complies with this Agreement. FatCow will use commercially reasonable efforts to e-mail Users who are at or near their utilization limits, but FatCow does not take responsibility if e-mail notification(s) is not received by the User. FatCow reserves the right to discontinue service through the beginning of the next month for your account in the event that it exceeds the any such allotment.
Parked Domain Services. In addition to the applicable terms and conditions contained herein:
- If User signs up to register and park a domain name with FatCow, All domain name renewal fees are due at time of invoice, before the renewal date of the domain name. Payments are non-refundable. If for any reason FatCow is unable to charge User's payment method for the full amount owed FatCow for the service provided, or if FatCow is charged a penalty for any fee it previously charged to Your payment method, User agrees that FatCow may pursue all available remedies in order to obtain payment. User agrees that among the remedies FatCow may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to User of User's service. FatCow reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, User service issues that cannot be handled over e-mail but require personal service, and disputes that require legal services. These charges will be billed to the payment method we have on file for User.
- User agrees to be responsible for notifying FatCow should User desire to terminate use of any of the Parked Page Services, including, but not limited to, those purchased. Notification of User's intent to terminate must be provided to FatCow no earlier than thirty (30) days prior to User's billing date but no later than ten (10) days prior to the billing date. In the absence of notification from User, FatCow will automatically continue the Parked Page Services indefinitely and will charge User's payment method that is on file with FatCow, at FatCow's then current rates. It is User's responsibility to keep their payment method information current, which includes the expiration date if using a credit card. In the event User terminates the Parked Page Services, moving their Web site off of the FatCow hosting servers is User's responsibility. FatCow will not transfer or FTP such Web site to another provider. Any change by User of their name-server is not deemed cancellation of the Parked Page Services.
- FatCow will provide User with the Parked Page Services as long as User abides by the terms and conditions set forth herein and in each of FatCow's policies and procedures.
- By using any of the Parked Pages Services, User agrees that FatCow may point the domain name or DNS to one of FatCow's or FatCow's affiliates web pages, and that they may place advertising on User's web page and that FatCow specifically reserves this right. User shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of User's Parked Pages.
- User agrees to indemnify and hold harmless FatCow for any complications arising out of use of the Parked Page Services, including, but not limited to, actions FatCow chooses to take to remedy User's improper or illegal use of a Web site hosted by FatCow. User agrees it is not be entitled to a refund of any fees paid to FatCow if, for any reason, FatCow takes corrective action with respect to any improper or illegal use of the Parked Page Services.
- If a dispute arises as a result of one or more of User's Parked Pages, User will indemnify, defend and hold FatCow harmless for damages arising out of such dispute. User also agrees that if FatCow is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Web site hosted by FatCow, that FatCow, in its sole discretion, may take whatever action FatCow deems necessary regarding further modification, assignment of and/or control of the Web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
SimpleScripts Terms. SimpleScripts automates the installation of a given open
source application. Users are free to install open source applications independently of
SimpleScripts by following the instructions provided by FatCow or the
organization that developed the open source application. When a User uses an open source
application, the User licenses it from the open source provider, not from FatCow.
- We do not provide support for the application once the application has been successfully installed; we provide support only for the installation or upgrade process. Any support requests regarding actual use of the application must be directed to the organization or FatCow that developed the application.
- The User is responsible for creating back-ups before upgrading to the next version.
- We can not guarantee that the version we currently provide is the latest one being distributed by the vendor.
- Any security risks including, but not limited to, hacking, phishing and information piracy are the sole responsibility of the User.
- We reserve the right to discontinue applications managed by SimpleScripts at any time.
- SimpleScripts applications are installed at the User's own risk. We can not be held liable for lost data or damage caused by open source applications provided through SimpleScripts.
Standard and Private-Label Reseller Programs. In addition to all terms and conditions described
in this Agreement, the following shall also be applicable to FatCow Wholesale,
Wholesale Plus and Private-Label Resellers;
- The Reseller agrees, on behalf of both the Reseller and each User signed up by the Reseller, to comply with these Terms of Service.
- In the event that a Reseller or a Reseller's User is determined to be in violation of the Terms of Service, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with the Terms of Service.
- FatCow is not responsible for the actions or misrepresentations of Resellers. The Reseller hereby agrees to indemnify FatCow from and against any and all claims made by any User that result from the Reseller's misrepresentation, breach of the Terms of Service or other improper actions by the Reseller.
- FatCow reserves the right to revise its Wholesale, Wholesale Plus and Private-Label Reseller Programs, AUP and the Terms of Service at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
- Users who have been signed up by Resellers agree to operate their Web sites in accordance with the Terms of Service.
- Resellers cannot make any modifications to the FatCow Terms of Service. Any such alterations shall be deemed a violation of the Terms of Service and could result in a cancellation of a Reseller's account(s). FatCow is not responsible for any modifications made to the Terms of Service by Resellers.
- Resellers in the Wholesale Reseller Program assume all responsibility for billing and technical support for each of their Users. FatCow reserves the right to refuse inquiries made to the Support Team from the Customers of Resellers in the Wholesale Reseller Program.
Obligations of Resellers of Domain Registrar Services. If
you are a Reseller of Domain Registrar Services these Terms of Service,
including without limitation the following provisions, constitute the
agreement by which you would provide Registrar Services ("Registrar
- Registrar Reseller agrees to comply with any and all policies, terms and conditions of ICANN (http://www.icann.org/registrars/ra-agreement-17may01.htm), or such other registration agreement as ICANN, FatCow, or registry administrator shall post on their website from time to time, but only those portions that are applicable to all registrars, including, but not limited to, those that will prohibit the registration of certain domain names (those not allowed to be registered by statute or regulation).
- Registrar Reseller is prohibited from displaying the ICANN or ICANN-Accredited Registrar logo, or from otherwise representing itself as accredited by ICANN unless it has written permission from ICANN to do so.
- Any registration agreement used by Registrar Reseller shall include all registration agreement provisions and notices required by the ICANN Registrar Accreditation Agreement and any ICANN Consensus Policies, and shall identify the sponsoring registrar or provide a means for identifying the sponsoring registrar, such as a link to the InterNIC Whois lookup service.
- Registrar Reseller shall identify the sponsoring registrar upon inquiry from the customer.
- Registrar Reseller shall ensure that the identity and contact information provided by the customer of any privacy or proxy registration service offered or made available by Registrar Reseller in connection with each registration will be deposited with Registrar or held in escrow or, alternatively, display a conspicuous notice to such customers at the time an election is made to utilize such privacy or proxy service that their data is not being escrowed. Where escrow is used, the escrow agreement will provide, at a minimum, that data will be released to registrar in the event Registrar Reseller breaches this reseller agreement, and such breach is harmful to consumers or the public interest. In the event that ICANN makes available a program granting recognition to resellers that escrow privacy or proxy registration data as detailed above, and Registrar Reseller meets any other criteria established by ICANN in accordance with its Bylaws, Registrar Reseller shall be permitted to apply to ICANN for such recognition.
- Registrar Reseller shall provide a link to the ICANN webpage that identifies available registrant rights and responsibilities, currently found at http://www.icann.org/en/resources/registrars/registrant-rights-responsibilities on any website it may operate for domain name registration or renewal clearly. Such link shall be displayed to its registered name holders at least as clearly as links to policies or notifications required to be displayed under ICANN Consensus Policies.
- If FatCow becomes aware that such a Registrar Reseller is in breach of any of the foregoing provisions, FatCow shall take reasonable steps to notify the Registrar Reseller that it is in breach of this reseller agreement and that FatCow has the right to terminate such agreement.
Virtual Private Servers (VPS). VPS sometimes also referred to as Virtual Dedicated Server.
When creating a VPS account, we split dedicated servers into independent areas, referred to as containers.
The customer is responsible for providing the firewalls, software, web files, content and Operating systems
for the customer's container, independent of other containers on the server. Each container is allotted
its own disk space, CPU power, bandwidth, and memory. This isolation of server space allows for
independent server customization for which the customer is responsible
VPS is different from shared hosting, and VPS customers should be technically advanced and prepared to use and operate a server, various Operating Systems, Linux and root access.
In addition to all terms and conditions described in this Agreement, the following shall also be applicable
to FatCow VPS customers;
- The Customer assumes all responsibility for installation and maintenance of the Operating System (OS) used within the customer's container, as well as any reinstalls and changes.
- Customer assumes all responsibility for their VPS environment, firewalls, protections from bugs, viruses or other intrusions, content applications and resources used.
- Customer agrees to take full responsibility for installation, storage, back-up, maintenance, and other aspects of its files, software, data and other content or items transferred to or used in the container and the VPS account.
- The Customer is solely responsible for all files contained in their VPS whether the Customer had knowledge of the files or not and for assuring that the container is used and operated in compliance with this Agreement.
- It is the responsibility of the customer to ensure their system is secured and safe from compromise at all time. If a container is found to be compromised or in violation of this Agreement, FatCow has the right to suspend and terminate service immediately.
- Resource Usage Limits. Misuse of system resources, including but not limited to, employing programs that consume excessive CPU time (outside of reserved for user's container), network capacity, disk IO or storage space, may result in account suspension and termination.
- Mail Policy. VPS accounts will be governed by our shared-hosting mail policy (See Acceptable Use Policy section 4.a). Furthermore, anyone hosting websites or services on their server or container that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network.
Third-Party Software. In the event You elect to install any third-party software, the following terms shall apply;
- You represent and warrant You have the right to use and install the third-party software.
- You have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity.
- You agree to defend, indemnify and hold harmless FatCow and its employees, officers and directors for, from and against any and all claims brought against FatCow and its employees, officers and directors by a third-party alleging the software infringes:
- the third-party's rights; or
- a third party's patent, trademark, copyright or other intellectual property right. You agree that in such an event You shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by FatCow in connection with any such claims.
- In addition to all terms and conditions described in this Agreement, the following shall also be applicable to FatCow VPS customers;
- FatCow hereby grants to User a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use FatCow technology, products and services solely for the purpose of accessing and using the Services. User may not use FatCow'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 FatCow to User any FatCow technology, and all rights, titles and interests in and to any FatCow technology shall remain solely with FatCow. User shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the FatCow.
- FatCow owns all right, title and interest in and to the Services and FatCow'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 User to use or resell the Marks.
- Disclaimer of Warranty. User agrees to use all Services and any information obtained through or from FatCow, at User's own risk. User acknowledges and agrees that FatCow exercises no control over, and accepts no responsibility for, the content of the information passing through FatCow'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. NEITHER WE NOR ANY OF OUR 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, A "RELATED 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 WE PROVIDE. NO RELATED 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. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER OR STORED BY USER OR ANY OF USER'S USERS VIA THE SERVICES PROVIDED BY US NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED 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.
- FatCow represents and warrants to User 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 FatCow generally to its other Users for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. User will be deemed to have accepted such Services unless User notifies FatCow, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. User's sole and exclusive remedy, and FatCow's sole obligation, for breach of the foregoing warranties shall be for FatCow, at its option, to re-perform the defective Services at no cost to User, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue User 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. FatCow 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 FatCow's reasonable control; (b) that resulted from any actions or inactions of User or any third parties; or (c) that resulted from User's equipment or any third-party equipment not within the sole control of FatCow. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE 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 WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO USER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability.
- IN NO EVENT WILL OUR 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 US BY YOU DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- WE CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. WE 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 Terms of Service theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 18 shall not apply to User's indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, FatCow'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 User for the Services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
- User understands, acknowledges and agrees that if FatCow takes any corrective action under this Agreement because of an action of User or one if its Users or a reseller, that corrective action may adversely affect other Users of User or other reseller Users, and User agrees that FatCow shall have no liability to User, any of its Users or any Reseller User due to such corrective action by FatCow.
- 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.
- Indemnification. User agrees to indemnify, defend and hold harmless FatCow 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 User's use of the Services, (ii) any violation by User of the AUP, (iii) any breach of any representation, warranty or covenant of User contained in this Agreement or (iv) any acts or omissions of User. The terms of this section shall survive any termination of this Agreement.
Waiver of Jury Trial
- Both You and FatCow hereby agree to waive all respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement.
- The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.
- You and FatCow each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings.
- Each party further warrants and represents that each has had the opportunity to have counsel review this Agreement and this waiver.
- The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.
- Independent Contractor. FatCow and User are independent contractors and nothing contained in this Agreement places FatCow and User 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 Massachusetts. 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 Middlesex County, Massachusetts. 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.
- Headings. 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 User or FatCow, 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 User and FatCow. 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 FatCow in its sole discretion, which modifications will be effective when posting to FatCow's Web site or on any subsequent date as may be set forth in any required notice provided by us in connection therewith. Upon renewal of any services or products, User agrees to all Terms of Service in effect on date of renewal and any amendments which take effect pursuant to the terms hereof.
- Severability. 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.
- Notices. 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. FatCow may give written notice to User via electronic mail to the User's electronic mail address as maintained in FatCow's billing records.
- Waiver. 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. User may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of FatCow. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. FatCow 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 User. 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.
- Counterparts. 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, FatCow'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, Terms of Service or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, User acknowledges and agrees that any supplier of third-party product or service 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 User as if it were a party to this Agreement.
- Government Regulations. User may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States (or, if User is outside of the United States, to anyone outside of User's national jurisdiction) 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 User operates or does business.
- Marketing. User agrees that during the term of this Agreement FatCow may publicly refer to User, orally and in writing, as a User of FatCow. Any other public reference to User by FatCow requires the written consent of User.
This file was last modified on June 29, 2016.