|FULL PARTNER, LLC TERMS AND CONDITIONS OF USE|| |
TABLE OF CONTENTS
- General Terms and Conditions
- Web Site Availability Service Level Agreement for Full Partner Web Site System Account Services
- Acceptable Use Policies
- Technical Support for Questions and Answers
- Warranties, Indemnification and Limitations of Liability
1. General Terms and Conditions
Full Partner, LLC offers a comprehensive suite of web based business services, including intranet sharing and collaboration, web site design, management and hosting, and web marketing facilities and services like email broadcasting, autoresponders and affiliate programs. When developing a website and/or marketing project for a client, Full Partner typically outlines two areas of work: 1) Fixed costs. These include fixed bid prices for setting up the various Full Partner Web System features and services you have requested for your Full Partner-powered web site. 2)Estimated costs: These include blocks of hours designated for web site design, consulting, content development and content entry, database management and custom programming of new features. The amount of hours designated reflects Full Partner’s knowledge of the amount of time it will likely take for these areas of work. If additional time is required, Full Partner may, with previous approval of the client, put in additional billable hours.
1.2. Scope of Work
Full Partner agrees to perform set up and hosting of its web based business services for the Client, using Full Partner’s Web Services System software product hosted on its dedicated web and database servers. The Client will gain access to the features of the Web Services System. Full Partner will provide training for the Client’s staff as outlined in the Activities section below. Full Partner will host the Web Services System for the Client for a monthly fee that includes use of the Web Services System technology, technical support, hosting on high speed, secure, reliable, fault-tolerant web and database servers, email accounts and other features of the Web Services System.
The Client may pay any applicable monthly fees by placing a valid credit card on file with Full Partner and pre-approving its use for monthly payments. The Client may pay by check if it agrees to pay quarterly or yearly in advance. Full Partner will invoice the Client 30 days in advance of the time period requiring payment, and must receive payment before the beginning of the time period requiring payment. If payments are not received by the beginning of the time period requiring payment, access by the Client to its Web Services System facilities will be temporarily disabled. If payment is not received within 15 days after the beginning of the time period requiring payment, public access to the Client’s web site will disabled. However, all Client’s data and content will be retained until 30 days after the beginning of the time period requiring payment, after which it will be permanently deleted from the Full Partner system if payment has not been made.
2. Web Site Availability Service Level Agreement for Full Partner Web Site System Account Services
2.1. Coverage; Definitions
This Web Site Availability Service Level Agreement (SLA) applies to you ("customer") if you have ordered a Full Partner Web Site System account service from Full Partner (the "Services") and your account is current (i.e., not past due) with Full Partner. As used herein, the term "Web Site Availability" means the percentage of a particular month (based on 24-hour days for the number of days in the subject month) that the content of customer's Web site is available for access by third parties via HTTP and HTTPS, as measured by Full Partner.
2.2. Service Level
Full Partner’s goal is to achieve 100% Web Site Availability for all customers.
Subject to Sections 3 and 4 below, if the Web Site Availability of customer's Web site is less than 100%, Full Partner will issue a credit to customer in accordance with the following schedule, with the credit being calculated on the basis of the monthly service charge for the affected Services:
Web Site Availability Credit Percentage
99.7 to 100% 0%
98% to 99.6% 10%
95% to 97.9% 25%
90% to 94.9% 50%
89.9% or below 100%
Customer shall not receive any credits under this SLA in connection with any failure or deficiency of Web Site Availability caused by or associated with:
2.3.a. circumstances beyond Full Partner's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, e-commerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
2.3.b. failure of access circuits to the Full Partner Network, unless such failure is caused solely by Full Partner;
2.3.c. scheduled maintenance and emergency maintenance and upgrades;
2.3.d. DNS issues outside the direct control of Full Partner;
2.3.e. issues with FTP, POP, or SMTP customer access outside of the direct control of Full Partner;
2.3.f. false SLA breaches reported as a result of outages or errors of any Full Partner measurement system;
2.3.g. customer's acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc), any negligence, willful misconduct, or use of the Services in breach of Full Partner's Terms and Conditions and Acceptable Use Policy;
2.3.h. e-mail or webmail delivery and transmission;
2.3.i. DNS (Domain Name Server) Propagation.
2.3.j. outages elsewhere on the Internet that hinder access to your account. Full Partner is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it. Full Partner will guarantee only those areas considered under the control of Full Partner: Full Partner server links to the Internet, Full Partner's routers, and Full Partner's servers.
2.4. Credit Request and Payment Procedures
In order to receive a credit, customer must make a request therefore by sending an email message to accounting@FullPartner.com. Each request in connection with this SLA must include customer's account number (per Full Partner's invoice) and the dates and times of the unavailability of customer's Web site and must be received by Full Partner within ten (10) business days after customer's Web Site was not available. If the unavailability is confirmed by Full Partner, credits will be applied within two billing cycles after Full Partner's receipt of customer's credit request.
Notwithstanding anything to the contrary herein, the total amount credited to customer in a particular month under this SLA shall not exceed the total hosting fee paid by customer for such month for the affected Services. Credits are exclusive of any applicable taxes charged to customer or collected by Full Partner and are customer's sole and exclusive remedy with respect to any failure or deficiency in the Web Site Availability of customer's Web site.
3. Acceptable Use Policies of the Marketing Services and Website Hosting Services
All of the Client’s content managed through the Full Partner Web Services System’s Intranet, Web Site and Web Marketing facilities remains the property of the Client. All Full Partner Web System features and tools, as well as custom features developed at the Client’s request and/or expense, remain the sole property of Full Partner unless specifically agreed to otherwise in writing between the Client and Full Partner.
3.1 DMCA Policy
The Client agrees to use the Full Partner services in accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf. The Client agrees to hold Full Partner totally harmless in the event any content is deemed to be in violation of the DMCA of 1998. Furthermore, Client agrees to reimburse Full Partner for all costs, including but not limited to Attorney Fees, Fines, and research and investigation costs associated with copyright infringement complaints, regardless of whether such complaints are found to be the legal responsibility of the Client. If Full Partner’s time is required to resolve issues resulting from copyright infringement complaints – that is, notifications at email@example.com by either individuals or organizations who believe their copyright has been violated – then support charges may be incurred for the time needed to resolve these issues.
3.2. Full Partner Anti-Spam Policy
Full Partner has a no tolerance spam policy. Full Partner’s customer support actively monitors large import lists and emails going to a large number of subscribers. Any customer found to be using Full Partner for spam will be immediately cut-off from use of the product. If you know of or suspect any violators, please notify us immediately at firstname.lastname@example.org Every email contains a mandatory unsubscribe. If the link is removed or de-activated in any way, Full Partner will terminate the customer's account.
What is Spam? Spam is unsolicited email also known as UCE (Unsolicited Commercial Email). By sending email to only to those who have requested to receive it, you are following accepted permission-based email guidelines.
What constitutes consent? The recipient of your email has been clearly and fully notified of the collection and use of his email address and has consented prior to such collection and use. This is often called informed consent.
Isn't there a law against sending Spam?
The federal anti-spam law went into effect on January 1st, 2004 and preempts all state laws. While this new law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.
Full Partner specifically prohibits the use of the Full Partner Web Services System to broadcast Unsolicited Bulk/Commercial Email (UCE, or commonly "Spam"). The definition of spam varies from state to state, but is under increasingly focused review by state and federal authorities, with significant penalties in place or under consideration for any one who sends spam, as well as for companies such as Full Partner who willingly transfer it.
Full Partner currently defines spam as any email with marketing content broadcast to multiple recipients who 1) have not had any previous communications with the sender, 2) have not given sender permission to send this email, and/or 3) have specifically request to NOT receive this email. Use of the Full Partner Web Services System to send out spam can result in fines to the Client as well as termination of their account with Full Partner. This strong policy is needed to protect both Full Partner’s ability to serve it’s clients, as well as to protect the Client’s own ability to do business on the internet. The Client should consult with Full Partner’s staff if it has any questions on this policy and whether any particular email broadcast would be in violation of this policy before sending out the email broadcast.
The Client agrees to hold Full Partner totally harmless in the event any emails sent by the client become the topic of violation of the Can SPAM Act of 2003. Furthermore, Client agrees to reimburse Full Partner for all costs, including but not limited to Attorney Fees, Fines, and research and investigation costs associated with abuse complaints, regardless of whether such complaints are found to be the legal responsibility of the Client. If Full Partner’s time is required to resolve issues resulting from abuse complaints – that is, notifications at email@example.com by either individuals or organizations who feel they have received email that they did not solicit – then support charges may be incurred for the time needed to resolve these issues.(It is Full Partner’s experience that emails broadcast to legitimate opt-in email lists never generate complaints of this type, while emails sent as spam to non-opt-in lists may generate complaints.)
4. Technical Support for Questions and Answers
Technical Support is for questions and answers to help the Client to become proficient and self-sufficient in use of system. This support is specifically limited to assistance and training in the use of the Full Partner Web System for the Client’s employees, and does not include Custom Programming, Content Management, Data Imports, Webmaster Services or assistance or support for customers or visitors to the Client’s web site. Unused hours or incidents of support are not cumulative from month to month and may not be transferred to any other purpose. Client may not contract out Full Partner employees away from Full Partner for work on client’s website.
5. Warranties, Indemnification and Limitations of Liability
5.1. Warranties of Each Party. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.
5.2. Full Partner’s Non-Infringement Warranty and Indemnity. Full Partner warrants that the Services do not infringe the intellectual property rights of any third party, nor will they defame or libel any person or entity. Notwithstanding the foregoing, Full Partner will not be deemed to have breached the warranties contained in this Section to the extent that (i) such infringement results from a modification of any Services by Client, its employees, agents, independent contractors or assigns, or (ii) to the extent that such infringement arises from or in connection with any Client Content. Subject to the conditions contained in Section 7(e), and as Client’s sole and exclusive remedy for any breach of the warranties contained in this Section 7(b), Full Partner agrees to defend, indemnify, and hold harmless Client, and its directors, officers, employees and agents from and against any third-party claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees) arising out of any breach of the warranties of Full Partner contained in this Section 7(b). If all or any part of any Service is likely to or does become the subject of a claim of infringement, Full Partner may, at its sole option and expense, procure for Client the right to continue using the Service, modify the Service to make it non-infringing, or replace the Service with a substantially similar, non-infringing replacement. If Full Partner determines that none of the foregoing alternatives is commercially reasonable, Full Partner may stop providing such Service through written notice to Client.
5.3. Client’s Non-Infringement Warranty and Indemnity. Client warrants that (i) Client owns or has the right to use all Client Content and has the right to license such Client Content to Full Partner in accordance with their Agreement with Full Partner; and (ii) Full Partner’s use of any Client Content in providing Services to Client under this Agreement will not violate the intellectual property rights of any third party nor will it defame or libel any person or entity. Subject to the conditions contained in Section 7(e), and as Full Partner’s sole and exclusive remedy for any breach of the warranties contained in this Section 7(c), Client agrees to defend, indemnify, and hold harmless Full Partner, its parent, subsidiaries, and affiliates, and each of their respective directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees) arising out of any breach of the warranties of Client contained in this Section 7(c).
5.4. Disclaimer of Warranties. Except for the warranties set forth in sections 7(a) AND 7(b), FULL PARTNER makes no other warranties hereunder, and expressly disclaims all other warranties, express, statutory or implied, including, without limiting the generality of the foregoing, all warranties of merchantability and fitness for a particular purpose or use, accuracy, completeness, and all warranties arising from course of performance, course of dealing, and usage of trade, or their equivalents under the laws of any jurisdiction. FULL PARTNER does not WARRANT THAT the services will be uninterrupted or free from error.
5.5. Conditions to Indemnity. To make a claim for indemnification hereunder, the indemnified party will promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of this Section 7. The indemnified party will, at its own expense, reasonably assist in the defense of such claims; provided, that the indemnifying party will control such defense and all negotiations relative to the settlement of any such claim, and further provided, that any settlement intended to bind the indemnified party will not be final without the indemnified party’s prior written consent, which will not be unreasonably withheld.
5.6. Limitation of Liability. Notwithstanding any other provision of this agreement, (A) NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT NOR otherwise for ANY FORM OF INDIRECT, consequential, exemplary, special, incidental, or punitive damages, even if SUCH PARTY has been advised of the possibility of such damages, and (B) FULL PARTNER’S LIABILITY TO BE FOR ANY REASON AND UPON ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF (i) $30,000, OR (II) THE SUM OF THE PAYMENTS MADE BY CLIENT TO FULL PARTNER UNDER THis agreement in the six (6) months prior to CLIENT’s CLAIM AGAINST fp UNDER THIS AGREEMENT.
Client acknowledges and agrees that the fees charged by Full Partner under and in connection with this Agreement reflect an allocation of risk between the parties, including, but not limited to, the limitation of liability and exclusion of remedies described in this Agreement. A modification of the allocation of risks set forth in this Agreement would affect the fees charged by Full Partner, and in consideration of such fees, Client agrees to such allocation of risk.
6. Term, Termination
6.1. Term. This Agreement will commence on the Effective Date and will continue until terminated in accordance with the terms of this Section.
6.2. Termination Without Cause. During the first year that this Agreement is in effect, Client may terminate this Agreement at any time without cause upon one thirty (30) days’ written notice to Full Partner. Commencing on the one (1) year anniversary of this Agreement, either party may terminate this Agreement at any time without cause upon thirty (30) days’ written notice to the other party.
6.3. Termination for Cause. In addition to any other right or remedy provided by this Agreement or by law, (i) Full Partner may terminate this Agreement for cause if Client fails to make a payment when due hereunder and does not cure such default within ten (10) days of its receipt of written notice from Full Partner of such default, and (ii) either party will be entitled to terminate this Agreement for cause through written notice to the other party (A) if such other party defaults under this Agreement and fails to cure such default within thirty (30) days of its receipt of written notice of such default from the other party, or (B) if a petition in bankruptcy is filed by or against the other party and is not withdrawn within sixty (60) calendar days, or if the other party becomes insolvent, or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law, or if the other party discontinues its business or if a receiver is appointed for its business.
6.4. Effect of Termination. The expiration or termination of this Agreement shall (a) be without prejudice to any right, which shall have accrued to either party prior to such expiration or termination, and (b) shall not affect any provision of this Agreement which, by its terms, is to be performed after any expiration or termination of this Agreement.