GENERAL SERVICES TERMS & CONDITIONS
This Tech and Support Service Agreement (“Agreement”) is entered into on this DAY, MONTH, Of YEAR between Zekmo, LLC, an Arizona Limited Liability Company in Phoenix, Arizona, USA, hereinafter referred to as “Service Provider” and Your Company, hereinafter referred to as “Client.” The Service Provider and the Client shall be collectively referred to as the Parties. You acknowledge that your electronic assent constitutes your acceptance to the Agreement for each written, verbal or electronic purchase or transaction you enter. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have the legal authority to bind that entity to this Agreement. Under this Agreement, the Service Provider will provide Tech Support Services and/or Cloud and Website Hosting Services to Client under the conditions established by the following General Services Terms & Conditions. The parties agree as follows:
By accepting this Agreement and using Service Provider’s Tech and Support Services (“Services”), Client agrees to be bound by all the Terms & Conditions of this Agreement.
2. Provision of Services
Service Provider agrees to provide Client Tech Support Services and/or Cloud Hosting Services for applicable website/s, online marketing and e-Commerce applications. Any additional services outside of Tech Support can be provided under the provisions defined in section 8 of this Agreement. Service Provider reserves the right to change or modify the features of Client’s Tech Support service plan from time to time on 30 days written or e-mailed notice to Client. Client’s continued use of Service Provider’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by the Service Provider’s modification of the terms and conditions of this Agreement.
From time-to-time we may cease supporting aspects of the Services (any such event, an “End of Life”). Should components of the Services come to an End of Life, we will attempt to replace them with comparable components, but may not be able to do so. An End of Life is not a breach of this Agreement.
3. Access to the Services and Authorized Users
Your use of Zekmo services is governed by these General Services Terms & Conditions, any applicable Country Specific Terms, and the terms of your Order. You may access the Services via File Transfer Protocol (FTP) or via a Service Provider-provided API. Service Provider may modify its control panel or APIs at any time, or may transition to new API’s.
Server Content and Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of all Contents and Customer Data. Client is solely responsible for determining the suitability of the Services in light of the type of Content and Customer Data used with the Services. You must maintain the security of your login credentials and may not share login credentials except as required to establish and authorize users in your account. You acknowledge that you are fully responsible for or all liabilities incurred through use of the account the Services including all damages, losses and liabilities caused by each user. You are solely responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you. In the event that you need your login credentials to be changed for security reasons, you must immediately notify Service Provider in writing via email at Info@Zekmo.com.
Service Provider agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Client and will remain in the exclusive care, custody, and control of Client.
4. Agreement Term
The initial term of this Agreement shall commence on the date of purchase of services by Client and continue throughout the remainder of the calendar month in which this Agreement was executed (the “Initial Term”). After the initial term, this Agreement shall be automatically renewed for successive monthly periods until terminated by one of the parties as provided in this agreement.
5. Termination without Cause
(a) Client may terminate this Agreement at any time, for any reason, by providing 30-day notice to Service Provider in writing and requesting that Client’s account be canceled. All Client termination notifications must be submitted by Client’s principal or authorized representative. In the event of a cancellation, Service Provider will not refund amounts already billed for the current monthly service period in which Client terminates the Agreement. Any amounts paid in advance by Client for future service terms following the current monthly service term will be refunded by Service Provider within 30 days.
(b) Service Provider may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client’s primary website e-mail contact address no less than 30 days prior to the service termination.
(c) If either Party terminates this Agreement, Client may request that Service Provider creates a back up all Client’s current Website content, databases, Client’s server files as an archive file, and send them to Client either as an attachment to an e-mail or via other cloud file transfer process, or mail them to Client in the form of a portable storage device for a $150 content back-up fee. Service Provider will have no liability for any data that was not saved by Client prior to termination of service and will not archive any data after sending the files to Client.
6. Termination for Cause
Client agrees to abide by the terms of this Agreement and by Service Provider’s general use policies as set forth in this Agreement, as those policies may exist from time to time. Service Provider may change its use policies on 30 day written notice to Customer by e-mail message, mail, or facsimile transmission. Any violation by Client of the terms of this Agreement or of Service Provider’s general use policies shall be grounds for immediate termination of Client’s account for cause. If Service Provider terminates Client’s account for a violation of this Agreement, Service Provider shall not be required to refund any amounts billed for the billing period in which Service Provider terminates Client’s services.
7. Fees and Payment Terms
Client agrees to pay Service Provider set forth for all Tech Support Services and/or Cloud Hosting Services purchased by Customer in accordance to Service Provider’s pricing as published on Service Provider’s Website and/or submitted by quote to Client. Service Provider may change its Pricing and the fees for its Services from time to time. Service Provider’s changes to the Pricing are effective upon publishing on the Service Provider’s WebSite. Service Provider will charge you fees in accordance with your Order. All project refunds prior to starting work are subject to a 10% payment processing and project set up fees. No refunds will be issued after work on your project has already started. Unless you have made other arrangements, Service Provider will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Service Provider’s option; provided that Service Provider may wait to charge your credit card until the total aggregate fees due are at least $50. All credit card payments are subject to a 3% processing fee added to your final invoice. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Service Provider first makes the Services available to you. Service Provider may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Service Provider may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Service Provider brings a legal action to collect, or engages a collection agency, you must also pay Service Provider’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Service Provider with accurate factual information to help Service Provider determine if any tax is due with respect to the provision of the Services, and if Service Provider is required by law to collect taxes on the provision of the Services, you must pay Service Provider the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Service Provider to obtain a credit report at any time during the term of the Agreement.
8. Website/Service Tech Support
Upon Client request, Service Provider may provide at its own discretion, other consulting services, such as custom website design, programming, Search Engine Marketing or sever technical support services under the terms of this Agreement. In all cases, Service Provider will provide Client with a written quote/estimate for the work or services to be performed in advance of executing the work. Service Provider will only complete the work upon receiving written signed or electronic approval from Client. Payment Terms for all services shall be as specified in section 6 of this Agreement.
9. Violations of Network Security
Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Service Provider will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any Client, Service Provider or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
(e) Taking any action in order to obtain services to which the Client is not entitled.
10. Warranty against Unlawful Use
Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause. Client also understands that Service Provider may be compelled to provide information about the Client and the Client’s files, and will do so if required by law. Service Provider may, unless otherwise prohibited, notify Client of such requests and may allow Client to obtain a protective order.
11. Liability; No Warranty; Limitation of Damages
(a) Client expressly agrees that use of Services provided by Service Provider is at Client’s sole risk.
(b) Service Provider guarantees 95% percent uptime for its Web servers. If uptime for Client’s Web server falls below 95% percent during any given month (or specify other payment period), Service Provider will credit Client as follows: Pro-rated based on monthly Service Provider fee for affected website. Any such credit shall be applied to future invoices. This credit shall be Client’s sole and exclusive compensation for any downtime or other unavailability of Service Provider’s services under this Agreement. Service Provider shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. Uptime guarantee does not include any failures by third party connections, general telco/internet failure, scheduled maintenance, acts of god, or due to Client’s actions.
(c) Service Provider, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.
(d) Service Provider, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, user error, or unauthorized access to Service Provider’s records, programs, or services. Client also acknowledges that Zekmo is a Reseller of Rackspace and WP Engine hosting services and agrees to abide by these two companies Acceptable Use Policy found at: http://www.rackspace.com/information/legal/aup/php and http://wpengine.com/aup/ respectively.
(e) Service Provider will exercise no control over the content of the information passing through Service Provider’s network except those controls expressly provided herein.
(f) Service Provider makes no warranties or representations of any kind, express or implied, for the services it is providing. Service Provider also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.
(g) With regards to Amazon.com Store Setup, Client understands and agrees that Zekmo, LLC provides a service for third-party sellers (“Sellers”) to list their products on Amazon.com website. Zekmo is not involved in the actual transaction between Sellers and Buyers. As a Seller, you agree to abide by Amazon’s Participation Agreement and you may list any item on the Site unless it is a prohibited item as defined in the procedures and guidelines contained Amazon’s Help section, or otherwise prohibited by law. As a Seller, you use Amazon’s website and the Services they provide at your own risk.
Please refer to Amazon Participation Agreement for more information.
11. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights
(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, account logins, software algorithms, or any form of intellectual property applied to the marketing of products or services and in general, interest in any product or service provided to Client belongs to Service Provider. These products, services and intellectual property are only for Client’s use in connection with Services provided to Client as outlined in this Agreement and are not, in anyway, transferable to Client or to a third party assigned by client upon termination of this Agreement.
(b) Client expressly warrants to the Service Provider that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Service Provider servers.
12. Hardware, Equipment, and Software
Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Service Provider servers. Service Provider makes no representations, warranties, or assurances that Client’s equipment will be compatible with Service Provider Services.
Client expressly represents and warrants that Client and any person to whom Client grants access to Client’s Service Provider account are at least 18 years of age.
Client agrees to defend, indemnify, and hold Service Provider harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Service Provider, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, Client’s agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Service Provider against liabilities arising out of:
(a) Any liability to Service Provider arising by virtue of any use of Service Provider’s services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;
(c) Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and
(e) Any defective product which Client sold or distributed by means of Services.
Client agrees that the liability limit of Service Provider shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys’ fees and court costs.
15. Governing Law, Arbitration
This Agreement has been entered into in the State of Arizona, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either Client or Service Provider may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. Service Provider will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. You and we waive any right to a trial by jury, so that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Client agrees to keep Service Provider informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Service Provider by e-mail at Info@Zekmo.com or on Service Provider’s website located at www.Zekmo.com. Failure to maintain or keep current all contact information shall be a ground for Service Provider to terminate Client’s account for cause.
In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
No waiver by Service Provider of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.
19. Entire Agreement
This Agreement shall constitute the entire agreement between Client and Service Provider, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. I have read and understood Zekmo, LLC’s terms and conditions. I agree that they form a binding contract between Service Provider and me, the Client.