This Service Agreement governs customer's purchase and use, in any manor, of all services, including but not limited to Cloud Services, Virtual Servers, Dedicated Hosting and Services Co-Location, Website Hosting, and Reseller Hosting, as described in the Order Form, ordered by customer and accepted by NextMetro, LLC DBA: BroadAspect also known as “BroadAspect” and describes the terms and conditions that apply to such purchase and conditions contained in this Agreement, the Addendum and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any modifications will be effective upon posting of the revisions to our site. BroadAspect may post changes or modifications to be referenced policies ad guidelines without notice to you. Your continued use of the Services following BroadAspect posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY BROADASPECT OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANOR DESCRIBED BELOW.
1. Initial Agreement Terms
This Agreement shall be for an "Initial Term" of twelve (12) months for all services except where specific terms are defined within services agreement – including but not limited to Cloud Services, Virtual Servers, Dedicated Hosting and Services Co-Location, Website Hosting, and Reseller Hosting. Customer agrees to all terms and conditions of services provided by BroadAspect beginning upon receipt by fax, e-mail, or express mail.
2. Renewal of Agreement Terms
This agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide BroadAspect with notice of termination either (a) at least thirty (30) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable.
3. Account Setup
a. BroadAspect will setup your account after having received payment and we and/or our payment partner(s) have screened the order(s) in case of fraud. It is your responsibility to provide us with an email address which is not of the domain(s) you are signing up under and other contact information.
4. Fees and Payment Terms
a. Initial payment is due upon activation of account. Activation takes effect on the date of receipt of payment, and will be renewed automatically for identical successive periods per sales quotation, sales order or online pricing selected and approved by customer. Any changes to the customer’s service package shall be billed accordingly.
b. Accounts that are forty-five (45) days past due on remittance of payment will result in an automatic suspension of service.
c. BroadAspect may charge set up fees, recurring service fees, and other one-time fees for optional services and, if requested by you, fees for domain name registration services (collectively "Service Fees"). Unless otherwise specified in any written offer or promotion, the Service Fees published on the BroadAspect website for the particular brand of Service you ordered are applicable to all transactions between you and BroadAspect. BroadAspect may amend the Services and/or the Service Fees associated with any of the Services at any time and from time to time without notice to you.
d. If BroadAspect does not receive payment from your Payment Processor (i.e., check, EFT, credit or debit card issuer or other financial institution), you agree to pay BroadAspect all amounts due upon demand. BroadAspect may charge you for a late payment fee equal to one and one-half percent (1.5%) on any overdue balance, or the maximum amount allowed by law if less, for each month or fraction of a month the overdue amount remains unpaid. BroadAspect may also charge you for an administrative fee for any returned checks or if your Payment Processor declines payment. You agree to pay BroadAspect's collection costs, including reasonable attorneys' fees, if BroadAspect is required to take action to collect any amounts that you fail to pay when due pursuant to this Agreement.
e. BroadAspect may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide valid Payment Processor information or authorization or fail to pay for any Services when due. BroadAspect may charge a minimum of Fifty Dollar ($50.00) or 10% of the regular monthly service fee, whichever is higher to reinstate any Service that has been suspended or terminated.
f.You understand and agree that you are responsible for any and all network bandwidth, compute, hard-drive usage, and any other overage charges you incur for using the Services, even if such overages arise because your account is compromised or "hacked". g.BroadAspect reserves the right to limit or not allow payment by credit and debit card.
5. Privacy Policy
a. BroadAspect is committed to protecting your privacy. You may review BroadAspect's current Privacy Policy at http://www.BroadAspect.com/legal/privacypolicy.asp.
6. Backups and Data Loss
a. Your use of the service is at your sole risk. BroadAspect is not responsible for files and data residing on your account**. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on BroadAspect servers.
b. BroadAspect automatically generate backups of shared server environments such as hosted sites and email servers, with weekly off site backups. Dedicated servers are not automatically backed up or protected. If loss of data occurs due to an error of BroadAspect, we will attempt to recover the date for no charge to the client. If data loss occurs due to negligence of a client in securing their account or by an action of the client, BroadAspect will attempt to recover the data from the most recent archive for an $85.00 fee.
c. **Except where customer and BroadAspect enter into a professional services agreement to provide data backup services or specific data protection services are included in the service for clients with hosted or out of datacenter computers and servers.
7. Service Level
a. Definitions
i. BroadAspect Hosting POP is defined as BroadAspect owned and operated Hosting infrastructure consisting of solely selected BroadAspect equipment housed within a single BroadAspect managed data center space.
ii. BroadAspect Backbone means BroadAspect owned and operated IP routing infrastructure consisting of solely selected BroadAspect points of presence at which has installed measurement devices.
iii. Network Outage is defined as an instance in which no traffic can pass in or out of the Selected POP through which Customer connects to the BroadAspect Backbone for more than 10 consecutive minutes.
iv. Hosting Uptime means the percentage of time across a month which a host is accessible via the BroadAspect Backbone.
v. Outage Window
- For unmanaged service plans, the hosting outage begins at the time the customer reports to BroadAspect Hosting technical support that service is interrupted until the time of response by BroadAspect that service has been restored.
- Managed service plans are monitored by BroadAspect and do not require customer action to report a service interruption. The outage window concludes when monitoring shows the service restore and BroadAspect confirms service functionality.
v. Packet Loss means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by BroadAspect.
vi. Latency is defined as the average time required for round-trip packet transfers between Selected interfaces on the selected portions of the BroadAspect Hosting Core Network during a calendar month, as measured by BroadAspect.
b. Hosting Uptime
i. BroadAspect's goal is to maintain 100% uptime of its hosted environments.
ii. Guaranteed hosting environment uptime commitment is 99.9% availability, except where service defines higher or lower uptime commitment.
iii. If uptime and availability is calculated to be less than 99.9% for a particular hosted website, server, co-location, PowerScale Infrastructure Standard Tier or other hosted service customers may request a credit towards their account per the following credit schedule.
AvailabilityCredit Percentage
98.0% - 99.8%10%
95% - 97.9%25%
94.9% or below50%
iv. Credits can only be used towards future billing charges.
v. Credit is only applicable to the specific service on the overall account that was below 99.8% per the billing period in which the non-conformance occurred.
vi. Credit request can only apply to disputed SLA non-conformance in the last billing cycle. Billing cycles over thirty (30) days old are not contestable.
vii. Credit request must be sent via email to BroadAspect support, BroadAspect is allowed up to 30 days to respond to the credit request.
viii. Maximum credit amount is 50% of the service which has fallen below the set SLA.
ix. Credit decision is based solely on BroadAspect's discretion.
c. Packet Loss
i. BroadAspect will maintain an average monthly Packet loss level of 0.1% or better from hosted network interfaces to network interfaces of BroadAspect’s edge network routers at any single BroadAspect Hosting POP.
ii. BroadAspect uses commercially reasonable efforts to determine source of excess Packet Loss and remedy to correct the problem.
d. Latency
i. BroadAspect shall carry packets with an average Latency over a one month period of less than 20 milliseconds within a single BroadAspect Hosting POP.
ii. BroadAspect shall carry packets with an average Latency over a one month period of less than 75 milliseconds within a BroadAspect Backbone network.
e. Exceptions
i. Scheduled and emergency maintenance windows to network and server infrastructure.
ii. Circumstances beyond BroadAspect’s reasonable control including without limitation; acts of any government body, war, sabotages, armed conflict, embargo, fire, flood, strike, interruption and delay of transportation of telecommunications. iii. Inability to access BroadAspect’s network, unless such failure is caused by BroadAspect. iv. False SLA breaches reported as a result of outages or errors of any BroadAspect measurement and monitoring systems. v. Email or webmail access, delivery and transmission. vi. Customer access that uses security accounts such as FTP, POP, IMAP and SMTP.
vii. Customer acts or omissions – custom scripting or programming within website or hosted application, any negligence, power-cycling of devices, willful misconduct, breach of Acceptable Use Policy along with terms and conditions.
viii. DNS issues outside the control of BroadAspect.
ix. DNS propagation of domain names.
x. Browser or DNS caching that make access to your account appear inaccessible when others can still access it.
xi. Outages elsewhere on the Internet that hinder access to your account.
8. Support
a. All hosted products and services provided by BroadAspect are supported directly by BroadAspect or by a third party on BroadAspect behalf. Customers are to reports issues and outages of supplied products and services directly to BroadAspect and not to BroadAspect suppliers or licensing companies.
9. Acceptable Use Policy ("AUP")
a. Customer represents that it has read BroadAspect.com’s acceptable use policy ("AUP") and its privacy policy ("Privacy Policy"), currently posted athttp://www.broadaspect.com/legal/AcceptableUsePolicy.asp, respectively. The AUP and Privacy Policy are hereby incorporated into this Agreement, and both parties will adhere to each.
b. Without limiting the generality of the provisions of Subsection 9(a) above, Customer will not allow the Service or BroadAspect equipment to be used for activities prohibited by the AUP. Third party violations of the AUP using Customer’s Service, including any IP addresses, points of access to the Internet, systems, software, or equipment assigned to or belonging to Customer, will be considered violations by Customer.
10. Zero Tolerance Spam Policy
a. We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists" and "double opt-in" will be treated as spam. Any user who sends out spam will have their account terminated without notice.
b. BroadAspect reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with this policy, at its sole discretion. BroadAspect also reserves the right to make any such modifications in an emergency at our sole discretion.
c. BroadAspect reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee. This cost of the clean up fee is left entirely to the discretion of BroadAspect. All rights reserved.
11. Content
a. You will not in any way use html, ASP, VB, .NET, java or perl code that will result unnecessary traffic nor will you install any client side applications that will result in excess traffic. The intent of BroadAspect is to provide space to serve web documents, not as an off-site storage area for electronic files. You will also not misrepresent the site in such a way that will result in needless traffic. Some examples of unacceptable content or links include: pirated software, hacker programs or archives, Warez sites, Spamware, Copyrighted MP3s and IRC bots. BroadAspect.com does not support; (i) sexually explicit, obscene or pornographic content (whether in text or graphics); (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise) or that promote any illegal activity; and/or (iii) graphic violence. We will terminate any account that does not conform to these requirements. BroadAspect reserves the right to terminate any account, for any reason, without prior notice or warning.
12. IP Addresses
Internet Protocol Numbers ("IP numbers") provided or assigned by BroadAspect in connection with the Services at all times remain the property of BroadAspect and are not portable, and the Customer shall have no rights with respect thereto. Assignment of IP Numbers are subject to ICANN and ARIN guidelines and are not guaranteed, and BroadAspect may modify such assignments at any time in its sole discretion. Customer shall provide an accurate host count and IP address justification at the time of contract signing and such count shall be subject to verification by BroadAspect.
BroadAspect may "swap-out" any IP address assigned to your Service with another IP address at any time. BroadAspect may revoke any Additional IP assigned to you for more than ninety (90) days if, at that time, you not are using at least 80% of your assigned IP addresses.
13. Illegal activities
a. Illegal activities, to include; unauthorized distribution or copying copyrighted software, violation of US export restrictions, harassment, fraud, trafficking in obscene material, and other illegal activities will be reported to all regulatory, administrative and/or governmental authorities. BroadAspect.com reserves the right to report all such activities.
b. You restricted from removing, modifying or obscuring any copyright, trademark or other proprietary rights notices that are contained in or on the Licensed Products.
c. You are prohibited from reverse engineering, decompiling, or disassembling the Licensed Products, except to the extent that such activity is expressly permitted by applicable law.
14. Cancellation and Refunds
a. BroadAspect.com reserves the right to cancel the account at any time.
b. Customers may cancel at any time. BroadAspect.com gives you an unconditional 30 day money back guarantee on managed shared hosting, Virtual Private Server and reseller solution's excluding any setup fees that may have been charged.
c. There are no refunds or money back guarantee on dedicated servers or co-location hosting, including setup fees that may have been charged.
d. After the initial thirty days of service, each customer is committed to the remaining time on the service term they purchased and no refunds will be given. BroadAspect does not require that you finish each term and you are free to close your account at anytime. However, BroadAspect will not pro-rate any return for unused service. For example, if you have an account that you are paying for monthly and you decide to close it a few days after your last payment, you will not be issued any refund, whether in full or pro-rated. By using BroadAspect hosting services, you understand and agree to this billing term. You also understand that while no refund will be issued, you are always free to keep your account open for the full amount of time you have paid for. e. Only first-time accounts are eligible for a refund. For example, if you've had an account with BroadAspect before, cancelled and signed up again, you will not be eligible for a refund or if you have opened a second account with BroadAspect.
15. Price Change
a. The amount you pay for hosting services will not increase from the date of purchase until the end of the service agreement, unless upgrades in service are requested. BroadAspect Hosting reserves the right to change prices listed on BroadAspect.com, and the right to increase the amount of resources given to plans at any time.
b. Renewal of service agreements are subject to potential price increases due to software licensing increases, data center power or data center space cost increases. Customer will be made aware of increases before time of renewal and required to approve price escalations or terminate service agreement.
16. Software Licensing
Any software licenses obtained on Customer's behalf (such as licenses from the Microsoft Service Provider License Agreement "SPLA") are subject to price increases to match any increases made by the software manufacturer.
17. Taxes
a. BroadAspect shall not be liable for any taxes or other fees to be paid in accordance with or related to purchase made from the customer or BroadAspect servers. Customer also agrees to take full responsibility for all taxes and fees of any nature associated with any such products sold.
18. Warranties and Disclaimer
a. Customer expressly acknowledges and agrees that all use of the services is at customer's sole risk. BroadAspect will not be responsible for any damages your business may suffer. BroadAspect makes no warranties of any kind, expressed or implied for services provided. BroadAspect disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by BroadAspect and its employees. b. For those services for which BroadAspect offers a system of credits or rebates for services interruptions, regardless of cause, such credits or rebates shall be Customer's sole remedy therefore. c. For direct, proven damages arising out of its performance or failure to perform hereunder, BroadAspect's liability shall be limited to an amount equivalent to the charges actually paid by Customer during the period, which such damages occur. d. Notwithstanding the foregoing, neither BroadAspect nor its affiliates, officers, directors, employees or agents shall be liable to Customer or to any third party for any direct, consequential, incidental, exemplary, or punitive losses or damages, including, without limitation, lost profits or data, regardless of the cause thereof, even if BroadAspect is advised of the possibility of such loss.
19. Indemnification
a. Customer agrees that it shall defend, indemnify, save and hold BroadAspect.com harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against BroadAspect, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless BroadAspect against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with BroadAspect; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from BroadAspect’s server.
b. You agree that BroadAspect's maximum liability to you under this agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort or other legal theory) shall be limited to the lesser of (a) the total amount of service fees actually paid by you to BroadAspect for the three month period immediately preceding the date on which the damage or loss occurred or the cause of action arose, (b) proven direct damages, and (c) five thousand dollars ($5,000.00).
c. The terms of this Indemnification Section shall survive any termination of this Agreement.
20. Force Majeure
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inaction´s of BroadAspect), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If BroadAspect is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, the Customer may cancel the Service(s), but there shall be no liability on the part of BroadAspect.
21. Assignment
The Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of BroadAspect, and any attempted assignment or delegation without such consent will be void. BroadAspect may assign this Agreement in whole or part. BroadAspect also may delegate the performance of certain Services to third parties, including Affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
22. Severability
In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
23. Relationship of Parties
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between BroadAspect and the Customer. Neither BroadAspect nor the Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
24. Notices
It is your responsibility to provide accurate and complete account and contact information, including a valid e-mail address, to BroadAspect during the Sign-up Process. It is also your responsibility to inform BroadAspect promptly of any changes to your account or contact information. BroadAspect has no responsibility for communications that are misdirected as a result of your failure to provide BroadAspect with updated contact information or as a result of the suspension or termination of your Services.
BroadAspect may provide notice to you required by this Agreement via e-mail at the address provided by you. You agree that notice to you at this address is deemed sufficient regardless of your receipt of such email. You must provide all notices to BroadAspect required in writing to BroadAspect, PO Box 1186, Ashburn, VA 20146-1186 or as changed by BroadAspect via its on-line amendment of this Agreement.
24. Governing Law & Choice of Venue
This agreement and rights of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, excluding its laws relating to conflict laws. The Parties agree that any appropriate state or district court located in Loudoun County, VA shall have exclusive jurisdiction over any case or controversy arising hereunder and shall be the proper forum in which to adjudicate such as case or controversy.
26. Changes to the Polices and Terms of Service
a. BroadAspect reserves the right to revise its policies at any time without notice.
I have read the terms and conditions stated in this agreement and I authorize BroadAspect to provide us with the Services Agreed upon by the related Hosting Proposal or Sales Order Form.
Customer Agreement
Hosting Terms and Conditions Agreement - Version 3.8