BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CLICKING THE ACCEPTANCE BUTTON, YOU RE PRESENT AND WARRANT THAT YOU: (i) ARE 18 YEARS OF AGE OR OLDER; (ii) ARE, OR ARE AUTHORIZED TO SIGN FOR AND BIND, THE CONTRACTING PARTY DEFINED BELOW AS "CUSTOMER;" AND (iii) HAVE READ, UNDERSTAND AND AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS ONLINE AGREEMENT. OTHERWISE, DO NOT CLICK THE ACCEPTANCE BUTTON TO PROCEED AND YOUR ORDER WILL BE DISCONTINUED.
This Online Agreement (this "Agreement") is a legal and binding instrument entered into as of the date of electronic acceptance by Customer (the "Effective Date")' by and between the Virtual Masses Computing("Virtual Masses " or "Provider")' and "Customer," the individual or entity entering into this Agreement. Virtual Masses reserves the right to amend this Agreement from time to time without notice to Customer. The most current version of this Agreement can be reviewed by clicking on the "TOS" hypertext link located at the bottom of www.Virtual Masses .net web page.
Virtual Masses agrees to provide and customer agrees to purchase the services requested by customer from the website, in email or in writing. Customer may add services via any of the 3 methods and agrees to pay in advance for them whether they be 1 time charges or recurring monthly fees.
Virtual Masses will invoice Customer for Fees and Expenses monthly; provided, however, that Virtual Masses may invoice Customer for Fees and Expenses associated with Service(s) provided pursuant to a customer request immediately upon Virtual Masses 's provision of such Service(s). Customer acknowledges that Virtual Masses will invoice certain Service(s) (including without limitation telecommunications services) in advance of the provision of such Service(s). Payment shall be due immediately upon the invoice date for recurring monthly services whether or not customer has received an invoice yet or not. Invoices which remain unpaid fifteen (15) days after receipt of same by Customer shall accrue interest at a rate of one and a half percent (1.5%) per month (or at the maximum interest rate otherwise allowed by law) until paid in full and service may be terminated for non payment after 7 days nat Virtual Masses option. Expenses shall be included on an invoice only to the extent that the actual amount of Expenses is known to Virtual Masses at the time the invoice is issued, and Expenses for which an actual amount is not known to Virtual Masses at the time an invoice is issued may be included on subsequent invoices. Unless otherwise agreed in writing by the Parties, the failure of Virtual Masses to include earned or incurred Fees or Expenses on a given invoice shall not relieve Customer of its obligation to pay such Fees or Expenses. Customer's obligation to pay Fees or Expenses shall survive the termination of this Agreement for any reason whatsoever.
For unmetered bandwidth servers, the bandwidth allocation that comes with the server (10M bps, 100M bps or 1Gbps) is completely usable and Customer may burst to the full port size. However, Customer agrees that average monthly usage may not exceed 35% of this allocated rate (3.5Mbps, 35Mbps or 350M bps respectively), or Customer's account will be subject to review and Bandwidth Overagages may apply. Dedicated file download, streaming or sharing websites in nature are prohibited at the standard un metered pricing and are subject to special pricing on unmetered lines.
Customer agrees that advertised bandwidth allowances represent the sum of the incoming and outgoing allowances. Customer agrees that the sum of incoming and outgoing bandwidth usage that exceeds the allowance shall be billed at $0.50 USD per GigaByte.
Remote Hands Service.
For its "Unmanaged" server solutions, Virtual Masses will provide hardware reboots and troubleshoot network related issues for no charge. For all other services including firewall, operating system reboots, and advanced troubleshooting services outside of hardware or network related issues, Virtual Masses will invoice Customer $40 USD per 15 minutes of administration service.
Customer grants Virtual Masses a blanket security interest in the customer's contract with their customers who are renting servers from them in the Virtual Masses data center and any equipment which they have collocated in the Virtual Masses data center in the event of non-payment by customer; customer agrees that Virtual Masses may take these customer contracts direct and or sell the equipment without a tortious interference claim or unlawful conversion claim to protect the credit balance owed Virtual Masses by customer and full ownership
of the contracts shall transfer as well if balance is more than 60 days old. Any amounts collected from any sale of equipment above and beyond the balance owed will be returned to the customer within 10 business days.
The initial term of this Agreement shall begin upon the date the computer related service and any associated service or license is installed and made available to customer and shall be for 1 month, 3 months, 6 months, 12 months or other period as agreed upon in the ordering process by both parties. If the customer pays in advance for an extended term of service, then the term for which the service was pa id initially shall govern as the initial term and no refund shall be given for early termination . After the initial term this Agreement shall renew automatically for the same period as the initial term until terminated by either Party upon the sooner of (i) thirty (30) days prior written notice to the other Party, or (ii) the expiration or termination of all Service(s) set forth in the Statement of Work and all Work Order(s).
Termination Due to Breach.
In the event that Customer commits a material breach of any of its obligations hereunder, Virtual Masses may terminate this Agreement or (at Virtual Masses 's sole option) suspend, interrupt or terminate one or more Service(s) to which such breach pertains by sending written notice of termination to Customer with termination effective as of the fifth (5th) calendar day after the date such notice is given.
Effects of Termination.
Unless the Parties agree otherwise in writing, termination of the Agreement shall also serve to terminate all Service(s) and Statements of Work and to cancel all Work Orders, and Customer shall pay Virtual Masses all Fees and Expenses earned or incurred by Virtual Masses pursuant to such Service(s), Statements of Work and Work Orders through the date of term ination, less any payments made hereunder by Customer prior to said termination . Additionally, all property of each Party which is in possession of the other Party shall be returned to its owner. In the event one or more Service(s) is terminated prior to the expiration of the Term for such Service(s) (other than due to a material breach of this Agreement by Virtual Masses .
Warranties of Virtual Masses . 100% uptime.
Virtual Masses warrants that the Service(s) shall be provided in a workmanlike and professional manner. Upon Virtual Masses 's breach of the foregoing warranty, Customer's sole and exclusive remedy shall be to require Virtual Masses to exercise commercially reasonable efforts to repair or replace the nonconforming Service(s); provided, however, that, with respect to any Service(s) which are interrupted or rendered inoperable due solely to Virtual Masses 's breach of the foregoing warranty for any time period, Customer shall also be entitled to a pro-rata refund of any Fees attributable to the interrupted or inoperable Service(s) in an amount determined by multiplying the fixed monthly, recurring Fees (if any) for the interrupted or inoperable Service(s) by the ratio that the number of consecutive hours of inoperability bears to 720 hours (for the purpose of this computation, each month is deemed to have 720 hours). Virtual Masses will not be liable to any extent whatsoever for interruption, restriction, inoperability or malfunction of any Service(s) which is not caused solely by a breach of the warranty set forth in this Section 4.1. Virtual Masses expressly reserves the right to suspend, interfere with, impair or terminate Service(s) as necessary for purposes of maintenance, upgrades or repair (either by Virtual Masses or by any supplier, partner or
independent contractor of Virtual Masses ) or in the event of any circumstance which Virtual Masses , in its sole discretion, deems necessary or desirable to prevent or remedy an impairment of, or harm to, the integrity or functionality of any Service(s) or any plant, services or facilities of any Indemnitees (as defined in Section 4.3) or of any third party, and neither the exercise nor the non-exercise of the foregoing rights or discretion shall constitute a breach of any provision of this Agreement.
EXCEPT AS SET FORTH IN SECTION 4.1.1, Virtual Masses MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF INTERRUPTED OR ERROR-FREE OPERATION AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE(S) OR ANY ASPECT THEREOF, AND ALL WARRANTIES WITH RESPECT THERETO ARE HEREBY EXPRESSLY DISCLAIMED.
Customer expressly acknowledges and agrees that proper provision of the Service(s) is dependent upon the provision to Virtual Masses by Customer of timely and accurate information regarding (i) Customer's needs and expectations regarding the Service(s), and (ii) all operational, technological or other data which Customer knows or should know is relevant to the provision of the Service(s) (collectively "Information"). Customer shall provide the Information to Virtual Masses in a timely manner and the Information shall be accurate. Customer agrees that, in the event of Customer's breach of its obligations in this Section 4.1, the warranty set forth in Section 4.1 shall be null and void.
Warranties of Customer.
Customer hereby covenants, represents and warrants that: Customer will not, and will not permit others to, use any Service(s) (i) for any unlawful or illegal purpose or in connection with or in furtherance of any unlawful or illegal activity, (ii) in violation of any applicable law or regulation, (iii) in a manner that will, or is likely to, infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the right of privacy, publicity or other personal rights of others, or (iv) in connection with any conduct or activity that is, in the sole opinion of Virtual Masses , defamatory, indecent, obscene, offensive, threatening, abusive, hateful, tortious or violative of the rights of any other person or entity; Customer will not, and will not permit others to, do any act which may interfere with or compromise the security or functionality of any Service(s), including without limitation attempting to probe or test the vulnerability of any system or network connected to or accessible by the Service(s);No equipment owned, leased, maintained by or controlled by Customer or by any third party which is connected to or utilized the Service(s) with the consent of Customer will (i) interfere with or impair any Service(s) or any plant, services or facilities of any Indemnitees or of any third party, (ii) unlawfully interfere with or impair the transmission of privacy of any data or communications transmitted over the Service(s) or over any plant, services or facilities of any Indemnitees or of any third party, or (iii) create, cause or contribute to the creation or causing of a hazard to any Indemnitees or to any third party.
In addition to the Warranties of Customer, Customer specifically agrees not to violate the Digital Millenn ium Copyright Act (DMCA) of the United States as an implementation of the two World Intellectual Property Organization (WI PO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Once Virtual Masses informs Customer of any DMCA violation via email, phone or in writing, Customer must remove infringing content within 24 hours of notice. If infringing content is not
removed within 24 hours, Virtual Masses will suspend all access to the offending website. DMCA Repeat Infringer Policy. For anyone Customer website, Customer can receive no more than three (3) unique DMCA violation
notices within any calendar year or service for that website will be terminated.
Virtual Masses reserves the right to suspend, interrupt or terminate any Service(s) or th is Agreement immediately without further notice in the event of a breach by Customer of Section 4.2. Virtual Masses reserves the right to remove, delete, disable or block transmission of any data or materials which Virtual Masses reasonably believes constitute, either alone or in conjunction with other acts, omissions or data or materials, a breach or potential breach by Customer of Section 4.2. Customer agrees to defend, indemnify and hold harmless Virtual Masses , its successors or assigns, subsidiaries, officers, directors, employees, agents, independent contractors, licensees, licensors, suppliers and customers (excluding Customer) (collectively "lndemnitees") against any and all
claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by such Indemnitees (including without limitation claims, liability, loss, damage, or harm in connection with death, bodily injury or injury to real or personal property) arising from or in connection with (i) Customer's purchase or use of any Service(s), including without limitation any claims, liability, loss, damage, harm suffered by such Indemnitees arising from or in connection with the use by any third party of any Service(s) purchased by Customer regardless of whether such use was authorized by Customer, or (ii) Customer's breach of any provision of this Agreement.
Limitation of Liability.
Any other provision of this Agreement to the contrary notwithstanding, the aggregate liability of all Indemnitees for any losses or damage, whether direct or indirect, arising out of or in connection with the Service(s), including without limitation any cause of action sounding in contract, tort or strict liability, shall be limited to actual, direct damages incurred but in no event shall exceed the greater of (i) One Thousand Dollars, or (ii) the Fees paid by Customer to Virtual Masses during the two (2) months preceding the month in which liability arose for the Service(s) in connection with which such liability arose. Virtual Masses shall not be liable for lost profits or other consequential damages, cover damages, or for any claims against Customer by any third party, even if Virtual Masses was advised of the possibility of same. Under no circumstances shall Virtual Masses be liable hereunder for special damages, consequential damages, general damages, incidental damages, indirect damages, or exemplary or punitive damages. No action arising out of this Agreement, regardless of form, may be brought by Customer against Virtual Masses more than one (1) year after the cause of action arose. Without limiting the foregoing:
Customer acknowledges that Virtual Masses is not responsible for controlling or monitoring any content, information, data or other materials stored on, transmitted via, or accessible through use of, the Service(s}, and Virtual Masses will have no liability to Customer whatsoever in connection with such content, information, data or other materials (including without limitation the accuracy or suitability thereof or unauthorized access or damage to, alteration, theft, corruption destruction or loss of, Customer's data or other materials); Virtual Masses will have no liability to Customer whatsoever in connection with any harm or loss arising from or in connection with unauthorized access to the Service(s); and all indemnitees are expressly made third party beneficiaries of this Section 5.
This Section 5 shall survive expiration or termination of this Agreement for any reason whatsoever.
Virtual Masses and Customer acknowledge that proprietary and confidential information (including without limitation trade secrets) (collectively "Proprietary Information") of each Party may be disclosed to the other Party throughout the term of this Agreement. Each Party agrees to not reverse engineer, decompile, disclose to any third party, or to use for any purpose not strictly required for such Party's performance hereunder, such Proprietary Information except to the extent that such Proprietary Information was: (i) made publicly available by the owner of the Proprietary Information or lawfully disclosed by a non-party to this Agreement; (ii) lawfully obtained from any source other than the owner of the Proprietary Information; (iii) independently developed by personnel of the receiving Party to whom Proprietary Information had not been previously disclosed and not based on or derived from such Proprietary Information; or (iv) previously known to the receiving Party without an obligation to keep it confidential. Customer will not contract directly with any subcontractor relationships that Virtual Masses has under this agreement or are connected to future services related to this agreement or that are of the same nature. Anything to the contrary herein notwithstanding, Virtual Masses may disclose such information to its successors or assigns, subsidiaries, officers, directors, employees, agents, independent contractors, licensees, licensors and suppliers which have signed and are bound by a suitable non-disclosure agreement with Virtual Masses in order for Virtual Masses to perform the service in this contract. The obligations set forth in this Section 6 shall survive the termination of this Agreement for any reason whatsoever for a period of three (3) years; provided, however, that, with respect to Proprietary Information which constitutes a trade secret, the obligations set forth in this Section 6 shall survive the termination of this Agreement for any reason whatsoever for so long as such Proprietary Information constitutes a trade secret under applicable law.
If either Party shall be prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or control s, casualty, inability to obtain materials or Service(s) or acts of God, such Party shall be excused from performance for the period of the delay and the time for such Party's performance shall be extended for a period of time equal to the duration of such delay.
Construction, Venue, Jurisdiction.
This Agreement and any claim, action, suit, proceeding or dispute arising out of or in connection with this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Georgia. Venue for any actions arising under this Agreement shall vest exclusively in courts located in the State of Georgia. Customer hereby submits to the jurisdiction of the aforementioned courts, and agrees that it will not assert lack of personal jurisdiction as a defense to any such action. Customer acknowledges that their attorney has reviewed and participated in the construction of this document and nothing herein shall be viewed as to have favorable construction. Waiver. No waiver of any right or remedy shall be valid unless in writing and delivered to the other Party, and waiver of a right or remedy on one occasion by a Party shall not be deemed a waiver of such right or remedy on any other occasion.
This Agreement, including all referenced or attached exhibits, schedules, attachments or documents, sets forth the entire agreement and understanding between the Parties pertaining to their subject matter and supersedes all prior or contemporaneous discussions, agreements, promises or understandings between the Parties. Neither Party shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided in this Agreement.
This Agreement shall not be supplemented or modified by any course of dealing or trade usage. Addition to or variance from the terms and conditions of the Agreement by Customer, including without limitation any additional or varying terms contained in Customer's preprinted forms, correspondence or other documents transmitted to Virtual Masses , shall be of no effect, unless otherwise expressly provided in the Agreement.
Assignment. This Agreement is not assignable by Customer, in whole or in part, voluntarily or involuntarily, including by operation of law or by merger in which Customer does not survive, without Virtual Masses 's prior written consent. Any attempted assignment without Virtual Masses 's written consent shall be null and void.
Unless otherwise agreed to by the Parties, all notices required under the Agreement shall be delivered in writing, addressed and sent to the address provided herein and to the attention of the Party executing the Agreement or the person's successor, by either (i) registered mail, (ii) certified mail, return receipt requested, or (iii) overnight mail, or (iv) by telephone facsimile transfer (v) email that is replied to as accepted – appropriately directed to the attention of the Party executing the Agreement or that person's successor. Unless otherwise agreed to by the Parties, all notices required under the Agreement shall be deemed effective when received and acknowledged by signature of receipt. Severability. If any provision of the Agreement is held invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.
Provider is permitted to include Customer's name on a public list of existing customers. Customers on the public list may be disclosed as a customer of Provider in public announcements and public disclosures and documents.
The customer agrees that the exclusive venue for litigation shall be Fulton County, Georgia. All lawsuits shall occur here and customer agrees that any judgments may be domesticated to their local court of appropriate jurisdiction to enforce the judgment.
Payment of customer of the first months fees shall constitute acceptance of this agreement. This agreement shall be modified from time to time by Virtual Masses and the then current version shall be posted on the Virtual Masses website. If customer does not agree to the new terms, customer should cease utilizing the services at the next term. If you are terminated due to a violation of our terms of service you agree that you will not receive any partial refunds and that this shall be considered a reasonable estimate of the liquidated damage and not a penalty.
Title 17, Chapter 5, ,512, C,
In compliance with Title 17, Chapter 5, ,512, C, (2) "Designated Agent" of the "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code" available at the "Interim Designation of Agent to Receive Notification of Claimed Infringement" for Virtual Masses Computinghas been filed with the U.S. Available at the Copyright Office or on OUR SITE HERE with the following contact information:
This Acceptable Use Policy applies to all persons and entities (collectively, "customers") using the products and services of Virtual Masses including Internet service. The policy is designed to protect the security, integrity, reliability, and privacy of both the Virtual Masses network and the products and services Virtual Masses offers to its customers. Virtual Masses reserves the right to modify this policy at any time, effective immediately upon posting of the modification . Your use of Virtual Masses 's products and services constitutes your acceptance of the Acceptable Use Policy in effect at the time of your use. You are solely responsible for any and all acts and omissions that occur during or relating to your use of the service, and you agree not to engage in any unacceptable use of the service.
What Uses are Prohibited?
Unacceptable use includes, but is not limited to, any of the following:
Upon notification of the existence of an abusable resource (e.g., open news server, unsecured mail relay, or smurf amplifier), the customer shall immediately take all necessary steps to avoid any further abuse of such resource. Any abuse of an open resource that occurs after the customer has received such notification shall
be considered a violation of this policy and enforced as such.
Virtual Masses may immediately suspend andlor terminate the customer's service for violation of any provision of this policy upon verbal or written notice, which notice may be provided by voicemail or E-mail. Prior to suspension or termination, Virtual Masses attempts to work with our customers to cure violations of this policy and ensure that there is no re-occurrence; however, Virtual Masses reserves the right to suspend or terminate based on a first offense.
Electronic Communications Privacy Act Notice Virtual Masses makes no guarantee of confidentiality or privacy of any information transmitted through or stored upon Virtual Masses technology, and makes no guarantee that any
other entity or group of users will be included or excluded from Virtual Masses 's network. In addition, Virtual Masses may periodically monitor transmissions over its network for maintenance, service quality assurance or any other purpose permitted by the Electronic Communications Privacy Act, P.L. No. 99-508, as amended .
Title 17, Chapter 5,512, C,
In compliance with Title 17, Chapter 5, 512, C, (2) "Designated Agent" of the "Copyright Law of the United States of America and Related Laws Contained in Title
17 of the United States Code" available at the "Interim Designation of Agent to Receive Notification of Claimed Infringement" for Virtual Masses Computinghas been
filed with the U.S. Available at the Copyright Office or on OUR SITE HERE with the following contact information:
Name of Agent Designated to Receive Notification of Claimed Infringement: XXXXXX
We recommend that all notices be sent via registered mail, signature required , to the agent of record to ensure receipt.
What Information do we collect?
We collect information from you when you register on our site, place an order, subscribe to our newsletter or fill out a form .
What do we use your information for?
Any of the information we collect from you may be used in one of the following ways:
How do we protect your information?
We implement a variety of security measures to maintain the safety of your personal information when you place an order or access your personal information. We offer the use of a secure server. All supplied sensitive/credit information is transmitted via Secure Socket Layer (SSL) technology and then encrypted into our Payment gateway providers database only to be accessible by those authorized with special access rights to such systems, and are required to keep the information confidential.
Do we disclose any Information to outside parties?
We do not sell, trade, or otherwise transfer to outside parties your personally identifiable information. This does not include trusted third parties who assist us in operating our website, conducting our business, or servicing you, so long as those parties agree to keep this information confidential. We may also release your information when we believe release is appropriate to comply with the law, enforce our site pOliCies, or protect ours or others rights, property, or safety. However, non-personally identifiable visitor information may be provided to other parties for marketing, advertising, or other uses.
Children's Online Privacy Protection Act Compliance
We are in compliance with the requirements of COPPA (Children's Online Privacy Protection Act); we do not collect any information from anyone under 13 years of age. Our website, products and services are all directed to people who are at least 13 years old or older.
Safe Harbor Privacy Statement
Virtual Masses complies with the U.S.-EU Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries. Virtual Masses has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view Virtual Masses 's certification, please visit http://www.export.gov/safeharbor/
This policy was last modified on 9/2/2010.