1. ACCEPTABLE USE POLICY
Definitions.
The following abbreviations used in this document are defined as follows:
- MSA refers to the Master Service Agreement seen in Section 2
- SLA means the Service Level Agreement (know as the Company Guarantee)
seen in Section 3
- AUP refers to this Acceptable Use Policy seen in Section 1
- Other Definitions. All other capitalized terms are defined in the terms of the
Master Service Policy
Purpose.
The purpose of this AUP is (a) to protect Network resources from abuse or
improper use, (b) to provide trouble-free Network resources for Users, (c) to
protect Avant-HQ, Avant-HQ's Users, the Network, the Users of the
Network, and third parties, from unlawful or improper practices, (d) to make
clear what activities on the Network are required, permitted, and prohibited,
(e) to protect the technical reliability, goodwill, good name, lawful status,
and reputation for honest dealing of Avant-HQ, (f) to secure each User's
agreement to abide by the limitations on Network use, and (g) to establish Avant-HQ's
rights to remedy violations of this AUP. This AUP shall create no rights in
Users or third parties, nor shall its provisions be construed to impose duties
upon Avant-HQ. Avant-HQ shall have discretion to apply this AUP in a
manner that will effectuate these purposes.
Reporting Violations.
All violations or alleged violations of this AUP should be sent to
[email protected]
User Responsibilities.
As further provided below Users agree that they will not use the Network for
purposes inconsistent with those set forth in the foregoing Purpose section of
this AUP.
Lawful Use of the Network.
In using the Network, Users will comply with, and refrain from violations of,
all applicable provisions of the United States Code, the Code of Federal
Regulations, and the Ohio Revised Statutes, including but not limited to
those statutes forbidding: (a) distribution of child pornography, (b) forgery,
identity theft, misdirection or interference with electronic communications, (c)
invasion of privacy, (d) violations of the CANSPAM Act, (e) collection of
excessive user data from children, or other improper data collection activities,
(f) securities violations, wire fraud, money laundering, or terrorist
activities, or (f) false advertising, propagating or profiting from frauds and
unfair schemes. Users will also comply with the affirmative requirements of law
governing Network use, including but not limited to: (a) disclosure
requirements, including those regarding notification of security breaches, (b)
records maintenance for regulated industries, and (c) financial institution
safeguards.
Agreed Use of Allotted Network Resources.
Users shall not use any method to circumvent the provisions of the SLA, or to
obtain services in excess of those for which they contract with Avant-HQ.
Users shall use only those IP addresses that are assigned to them by Avant-HQ,
and shall not use any IP addresses outside of their assigned range. Users shall
not use any mechanism to exceed the amount of Network resources assigned to
them, or to conceal such activities.
Injurious Code.
Users may not use the Network to distribute, receive communications or data
gleaned from, or execute any action directed by any type of injurious code,
including but not limited to: (a) trojans, (b) key loggers, (c) viruses, (d)
malware, (e) botnets, (f) denial of service attacks, (g) flood or mail bombs, or
(h) logic bombs.
Email Violations.
In addition to being forbidden from performing any acts made illegal by the
CAN-SPAM Act, Users may not send bulk email utilizing their Network resources
unless they maintain a double-authorized list of subscribed members including IP
addresses and relevant contact information, along with following guidelines for
including removal links with all sent emails according to the CAN-SPAM act.
Users are forbidden from taking any action that would result in their IP
addresses, or any IP address associated with Avant-HQ or other Users, being
placed on the Spamhaus.org blacklist.
Invasion of Privacy, Defamation, or Harassment.
Users may not use Network resources in a manner that would violate the lawful
privacy rights of any person, or to publish or republish defamatory statements,
or to harass and embarrass.
Violation of Copyright, Trademark, Patent or Trade Secret.
Users may not use Network resources in violation of the copyrights, trademarks,
patents or trade secrets of third parties, nor shall they utilize the Network to
publish such materials in a manner that would expose them to public view in
violation of the restrictions of law. The provisions of the DMCA will apply to
issues presented by allegations of copyright violations by third parties. Avant-HQ
will, in appropriate circumstances, terminate the accounts of repeat infringers.
Other Violations.
The foregoing enumeration of violative acts is not meant to be exclusive, and
Avant-HQ provides notice hereby that it has and will exercise its authority
to take whatever action is necessary to protect the Network, Users, and third
parties from acts that would be inimical to the purposes of this AUP as set
forth above.
Acts of Sub-Users.
Users are responsible for the acts of others utilizing their Network access, and
will be held responsible for violations of this AUP by their sub-users or
persons who gain access to the Network using the User's access codes. Any
activity that a User is prohibited from performing by this AUP is equally
prohibited to anyone using the Network-access of the User. Accordingly, Users
agree to take the following actions to control the activities of those who
connect to the Network by any means.
Access Code Protection.
Users will utilize proper security protocols, such as setting strong passwords
and access control mechanisms, safeguarding access to all logins, passwords, and
verifying the trustworthiness of persons who are entrusted with account access
information.
Notification Regarding the AUP.
Users will notify all persons who receive Network-access of the provisions of
this AUP, and will inform them that its terms are binding upon them.
Remedial Action.
Users will notify Avant-HQ if and when they learn of any security breaches
regarding the Network, and will aid in any investigation or legal action that is
taken by authorities and/or Avant-HQ to cure the security breach.
Remedies for Violations.
Avant-HQ may take any of the following appropriate actions to remedy
violations of this AUP:
Service Suspension or Termination.
Avant-HQ may suspend or terminate any account by a User that violates the
provisions of this AUP, as Avant-HQ may deem appropriate to the
circumstances of the violation. Avant-HQ will provide prior notice of the
intent to suspend or terminate service if the provision of notice will not, in
Avant-HQ's judgment, run counter to the purposes of the AUP.
Charges for Implementing Remedy.
Avant-HQ may pass through to a User the costs of remedying the consequences
of violations of the AUP that cause Avant-HQ to expend tech or
administrative time, to purchase hardware or software, or to otherwise incur
expenses that would not have otherwise been incurred. Such costs may be appended
to the regular service invoice, and all collection provisions applicable to
collection of service costs shall be applicable to the collection thereof.
Investigation.
Avant-HQ may notify law enforcement to investigate conduct that violates the
provisions of this AUP regarding criminal misconduct. Avant-HQ may directly
investigate any violations of this AUP, and shall have no liability for
undertaking any such investigation in good faith.
Legal Action.
Avant-HQ may take legal action to: (a) enjoin violations of the AUP, (b)
obtain indemnity under the MSA Indemnification provisions for violations of the
AUP, or (c) to recover damages, including attorneys fees and costs, resulting
from AUP violations.
2. MASTER SERVICE AGREEMENT
Definitions.
Agreement refers to this Master Service Agreement and all of the terms
incorporated by reference in the Related Agreements and Policies. The Agreement
is subject to amendment upon written email notice by Avant-HQ. Amendments
shall take effect no less than thirty-one days after notice is given, except in
the event that amendments are made to remedy circumstances that may expose Avant-HQ,
Users, or third parties to the risk of substantial damage, in which case
amendments will take effect on the date necessary to forestall, prevent, or
mitigate said risk, said date to be established in the sole discretion of Avant-HQ.
Start Date is the date when Avant-HQ provides User with IPs, logins,
passwords and other access information.
The following Related Agreements and Policies are incorporated by reference
and defined as follows:
SLA means the Service Level Agreement seen in Section 3
AUP refers to the Acceptable Use Policy seen in Section 1
Hardware includes Internet servers, processors, memory storage, power
supplies, cabling, and all other physical requirements for operating Avant-HQ.
Software includes all digitally encoded instructions, programs, or scripts, in
any computer language.
Data is information transmitted or stored in digital form.
Personal Data is information that records names, addresses, birthdates,
telephone numbers, email addresses, user names, passwords, social security
numbers, drivers license numbers, banking access codes, credit card numbers, and
all other information that can be used to gain access to the personal records,
accounts, and information records regarding individuals and businesses.
Backup is the process and product of creating redundant copies of data as
security against systems failures that may endanger the preservation of data.
Services are provided by Avant-HQ pursuant to the terms of this Agreement,
and include the following:
Hosting is the provision of server space that permits Users to publish content
on the Internet, and is provided pursuant to the terms set forth in the SLA.
Support includes a variety of services provided by Avant-HQ, as set forth
in greater detail in the SLA, including Growth Management, Server Management,
Proactive Monitoring, and Incremental Backups.
Additional Services are services specifically tailored to the needs of
particular Users, billed on an hourly basis and separately invoiced. The
provision of Additional Services may be conditioned upon prepayment of all or a
part of the estimated expense of providing the service.
Confidential Information is information that is the property of Avant-HQ,
including software, technology, ideas, formulae, know-how, documentation,
procedures, algorithms and trade secrets, including technical documentation,
solution methodology, user manuals, customer lists, codes, passwords, and other
information that reveals or facilitates the operation and/or content of its
business processes.
Third Party Products are hardware or software that Avant-HQ purchases,
leases, licenses, or otherwise procures, in order to provide services to Users.
Term.
The term of this Agreement shall be monthly, to commence on the Effective Date,
and to continue in force unless and until timely notice of cancellation is given
in writing by either party. Timely notice shall be given not less than than five
(5) days before the monthly anniversary of the Effective Date.
Fees.
Fees are billed by Avant-HQ on a monthly billing cycle commencing on the
first of each month, ending on the last day of the month.
Initial Invoice.
The initial invoice will contain a pro-rated amount for the remainder of the
calendar month (from Start Date to the last day of that calendar month). Users
will pay the initial invoice before receiving access to Avant-HQ services.
Invoicing Policies.
All invoices are denominated, and User must pay, in U.S. Dollars. User will be
billed on or around the first of each month, with payment due no later than the
15th of the month. Recurring fees stated in the SLA are billed in advance,
monthly. Therefore, the full amount on each successive invoice will consist of
the sum of the current billing cycle's recurring fees and any outstanding
overage fees for the previous billing cycle. Additional overage (e.g. bandwidth)
and/or any non-recurring fees will be billed monthly in arrears. Any other fees
will be billed as stated in the Service Contract or explicitly agreed to by the
Customer in writing.
Arrearages.
Payments not made within thirty (30) days of invoicing will be deemed in
arrears. For accounts in arrears, Avant-HQ may include interest of 1.5% per
month on the amount in arrears, or the maximum allowable rate. If any amount is
more than thirty days overdue, Avant-HQ may suspend service and bring legal
action to collect the full amount due, including any attorneys fees and costs.
Customers whose checks are returned for insufficient funds may be charged $40
per returned check, or the maximum amount allowed by law. Customer will be
notified of any future amendments to the recurring costs associated with their
Service Contract on each billing cycle's invoice.
Suspension for Nonpayment.
Avant-HQ may suspend some or all Services to User for failure to make timely
payment. Duties of Avant-HQ. During the term of this Agreement, Avant-HQ
will provide User with the services selected during checkout, and Additional
Services specifically contracted for in writing. Avant-HQ will provide User
with IP addresses, logins, passwords, and other information necessary to access
the services.
User Duties. User will:
Provide and maintain accurate personal and business identifying information,
including Social Security Numbers, EIN Numbers, names, addresses, telephone
numbers, and email addresses.
Utilize proper security protocols, such as setting strong passwords and access
control mechanisms, safeguarding access to all logins, passwords, verifying the
trustworthiness of persons who are entrusted with account access information,
and notifying Avant-HQ if and when any security breaches involving data
hosted or stored at Avant-HQ occurs.
Make full and timely payment of fees for services as selected pursuant to the
terms of the SLA.
Provide Avant-HQ with accurate information relevant to assessing fees.
Comply with the terms of this Agreement, including the requirements of the SLA,
AUP, Privacy Policy, and Intellectual Property Policy.
Third Party Products.
Avant-HQ is authorized to procure such Third Party Products as are necessary
to the provision of Avant-HQ Services for User, and in a manner in
conformity with industry custom and practice, and to invoice for the same. Avant-HQ
does not warrant the quality, reliability, durability, or fitness for use of
such Third Party Products, and shall have no liability for the failure of
performance of the same.
Disclaimers and Waiver of Liability.
Avant-HQ DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING
THE SERVICES PROVIDED HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION
OR OTHER AFFIRMATION OF FACT REGARDING HARDWARE, SOFTWARE, OR SERVICES, NOR THE
STATEMENT OR CONDUCT OF ANY AGENT OF Avant-HQ, SHALL BE DEEMED A WARRANTY FOR
ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. USER ACKNOWLEDGES THAT HE
OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH
HEREIN. USER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST Avant-HQ ARISING OUT OF
USER'S PURCHASE OR USE OF THE SOFTWARE, OR ANY CONDUCT OF Avant-HQ'S
OFFICERS, EMPLOYEES, OR AGENTS. Avant-HQ SHALL NOT, UNDER ANY CIRCUMSTANCES,
BE LIABLE TO USER OR ANY THIRD PARTY IN ANY AMOUNT, OR FOR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF
GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF Avant-HQ HAD BEEN ADVISED
OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NO DISCLOSURE BY
Avant-HQ'S OFFICERS, EMPLOYEES, OR AGENTS, SHALL BE MADE A CAUSE OF
LIABILITY. UNDER NO CIRCUMSTANCES SHALL Avant-HQ'S AGGREGATE CUMULATIVE
LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, UNDER STATUTE, OR OTHERWISE,
EXCEED THE AMOUNT OF ONE (1) MONTH OF SERVICE PROVIDED PURSUANT TO THIS
AGREEMENT. USER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE
ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT Avant-HQ WOULD NOT
ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS.
Confidentiality.
User shall keep confidential any Confidential Information to which it is given
access, and shall cooperate with Avant-HQ's efforts to maintain the
confidentiality thereof. User shall not publish to third parties or distribute
information or documentation that Avant-HQ provides for purposes of
operating and maintaining its systems, including material contained in
estimates, invoices, work orders, or other such materials.
Backup.
Except as specifically contracted for by User in the SLA, User is solely
responsible for the preservation of User's Data. Even with respect to Data as to
which User contracts for backup services, Avant-HQ shall have no
responsibility to preserve Data beyond the scope and time periods set forth
specifically in the SLA.
Export.
User shall comply with all applicable export and import control laws and
regulations in its use of Avant-HQ Services, and, in particular, User shall
not utilize Avant-HQ Services to export or re-export Data or Software
without all required United States and foreign government licenses. User assumes
full legal responsibility for any access and use of Avant-HQ Services from
outside the United States, with full understanding that the same may constitute
export of technology and technical data that may implicate export regulations
and/or require export license, and represents that, should such a license be
required, it shall be User's responsibility to obtain the same, and in the event
of any breach of this duty resulting in legal claims against Avant-HQ, User
shall defend and hold Licensor harmless from all claims and damages arising
therefrom.
Indemnification.
User shall defend, indemnify and hold harmless Avant-HQ from any and all
claims or causes of action arising out of User's misuse of Avant-HQ
Services.
Termination.
Either party may terminate this Agreement if the other party fails to cure a
material breach of the terms of this Agreement within thirty (30) days after
receiving notice thereof. In the event Avant-HQ terminates this Agreement
for User's material breach, any amounts owed to Avant-HQ hereunder before
such termination will be immediately due and payable, any and all rights granted
to user this Agreement will immediately be cancelled, and User shall promptly
discontinue all use of the Services, relinquish any Confidential Information in
User's possession or control. If Avant-HQ determines that User's failure to
abide by the terms and conditions of this Agreement may give rise to unlawful
consequences or cause an immediate risk of damage to Avant-HQ, other Users,
or third parties, Avant-HQ may terminate this Agreement on less than thirty
(30) days notice.
Legal Compliance.
Avant-HQ may suspend or terminate Services and this Agreement immediately
upon receipt of any lawfully issued notice from a court having jurisdiction over
Avant-HQ, alleging the use of the Services to accomplish violations of law,
pending the resolution of the relevant court proceeding. When subjected to
lawful process requiring disclosure, Avant-HQ may disclose the User's
identity and contact information, and Avant-HQ shall not be liable for
damages or results thereof, and User agrees not to bring any action or claim
against Avant-HQ for such disclosure.
Survival.
All terms of this Agreement, which by their nature are intended to survive
termination of this Agreement, shall so survive.
Force Majeure.
Either party shall be excused from performing hereunder to the extent that it is
prevented from performing as a result of any act or event which occurs and is
beyond its reasonable control, including, without limitation, acts of God, war,
weather, utility or telecommunications outages, unrest or riot, strikes any
action of a governmental entity, etc.; provided that the party experiencing the
force majeure provides the other with prompt written notice thereof and uses
reasonable efforts to remedy effects of such force majeure.
Choice of Law, Venue, Consent to Email Service and Waiver of Hague
Convention Service Formalities.
Any claim arising under this Agreement shall be construed in accordance with the
substantive and procedural laws of the State of Ohio, without regard to
principles of conflict of laws. User consents to the jurisdiction of the State
of Ohio. User consents to service of process via Domestic or International
First Class Certified Mail and/or email at the land and email addresses set
forth in the signature line below, and waives any requirement under the Hague
Convention or other judicial treaty requiring that legal process be translated
into any language other than English.
Integration and Miscellaneous Provisions.
This Agreement, including all related agreements and policies incorporated by
reference herein, constitutes the entire agreement between the parties related
to the subject matter hereof, supersedes any prior or contemporaneous agreement
between the parties relating to Avant-HQ's Services and shall not be
modified except by a written agreement signed by both parties, specifically
recording the intent to amend this Agreement. Any waiver of a provision of this
Agreement must be in writing and signed by the party to be charged. A valid
waiver hereunder shall not be interpreted to be a waiver of that obligation in
the future or any other obligation under this Agreement. If any provision of
this Agreement is prohibited by law or held to be unenforceable, the remaining
provisions hereof shall not be affected, and this Agreement shall continue in
full force and effect as if such unenforceable provision had never constituted a
part hereof. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute the same
instrument. This Agreement may be signed electronically.
3. COMPANY GUARANTEE
100% Uptime Guaranteed.
Network.
We guarantee that the public and private networks at our data centers will be
available 100% of the time in any given month, excluding scheduled maintenance.
Infrastructure.
We guarantee that our data centers will have power and functioning HVAC, 100% of
the time in any given month, excluding scheduled maintenance. Your servers will
never be shut down due to loss of power or overheating problems.
Hardware.
We guarantee that any failed hardware and server components located within our
data centers will be replaced within two (2) hours of failure identification.
Credits.
To file a request for SLA credit, customers must contact
[email protected] within one (1) week of the incident, and include all
applicable details about the downtime. Customers will be credited 5% of their
monthly account fee for every half hour of sustained downtime, up to 100% of
their monthly account fee for the affected server(s).
