The following terms of service (these “Terms of Service” or this “Agreement”) govern the provision by Windhill Design LLC to the customer executing this transaction (“Customer”), of the products and services described at www.windhill.com and provided and paid for by Customer the (“Products and Services”). These Terms of Service shall be effective as of the date that Customer executes its online transaction or commences service and thereby accepts these Terms of Services (the “Effective Date”). These Terms of Service hereby incorporate by reference any SLA, Windhill Design LLC’s Acceptable Usage Policy (as in effect from time to time as set forth on Windhill Design LLCs website, the “AUP”) and any Order Form each of which is made a part of these Terms of Service and collectively referred to herein as the Agreement.” Customer’s use of Windhill Design LLC’s website, Windhill Design LLC Network, and the Products and Services is also subject to Customer’s acceptance and compliance with these Terms of Service, the AUP, the SLA and the Order Form. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable.
PLEASE READ THIS AGREEMENT CAREFULLY. This is a binding agreement between Customer and Windhill Design LLC and includes automatic renewal terms. By submitting an Order Form online or by using Products and Services, Customer hereby agrees to the terms and conditions of the Agreement. THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS.
The use of services from Windhill Design LLC, [hereafter referred to as “Provider”] constitutes agreement to these terms.
1. Account Setup / Email on file
1.1 We will setup your account after receipt of all required account information, payment receipt verification and the conclusion of all order & fraud screening processes. Providing false contact information of any kind may result in the termination of your account. Invoices will be e-mailed to the e-mail address on file. It is the Customer’s responsibility to ensure that we have your correct e-mail address on file.
2. Prohibited Uses
2.1. All services provided by Provider may only be used for lawful purposes. The laws of the State of New Hampshire, and the United States of America apply.
The customer agrees to indemnify and hold harmless Provider from any claims resulting from the use of our services.
Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another’s copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting.
Provider services, including all related equipment, networks and network devices are provided only for authorized customer use. Provider systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Provider system(s) constitutes consent to monitoring for these purposes.
We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.
2.2. Prohibited Uses of Windhill Design LLC’s Hosting Systems and Services:
Provider does not actively monitor dedicated server content for review. Provider believes in the free dissemination of information via our services. Dedicated server content will only be reviewed upon complaint by verified third parties. Content that does not violate local, state and federal law or the AUP is deemed in compliance and shall remain intact. Legal adult content is not allowed on Provider dedicated servers.
2.3. Customer Responsibility for Customer’s Users
Each Provider Hosting customer is responsible for the activities of its users and, by accepting service from Provider Hosting, is agreeing to ensure that its customers/representatives or end-users abide by this Policy. Complaints about customers/representatives or end-users of an Provider Hosting customer will be forwarded to the Provider Hosting customer’s postmaster for action. If violations of the Provider Hosting Acceptable Use Policy occur, Provider Hosting reserves the right to terminate services with or take action to stop the offending customer from violating Provider Hosting’s AUP as Provider Hosting deems appropriate, without notice.
3. Payment Information
You agree to supply appropriate payment for the services received from Provider, in advance of the time period during which such services are provided. You agree that until and unless you notify Provider of your desire to cancel any or all services received, those services will be billed on a recurring basis.
Cancellations must be done in writing via the cancellation process provided. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in writing (typically email) that your account has been canceled.
As a client of Provider, it is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. Invoices are e-mailed to your e-mail address 15 days before their due date. A reminder will be sent five days before the due date if payment is not sent. Three overdue email reminders will be sent. The first at one day over due, the second at ten days overdue and the third and final reminder at 20 days overdue. A late fee of 10% ($5 minimum) will be applied to all invoices that are 15 days overdue.Any hosted accounts that remain unpaid 30 days after the due date will be suspended. If sending payment by mail, please allow 3-5 days for delivery.
Provider reserves the right to change the monthly payment amount and any other charges at anytime.
4. Cancellations and Refunds
Provider reserves the right to cancel the account at any time with or without notice. Violations of the Terms of Service will waive the refund policy.
By using any Provider services, you agree to submit to binding arbitration. If any disputes or claims arise against Provider or its subsidiaries, such disputes will be handled by an arbitrator of Provider’s choice. An arbitrator from the American Arbitration Association will be selected. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.
Provider shall not be responsible for any damages your business may suffer. Provider makes no warranties of any kind, expressed or implied for services we provide. Provider 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 Provider and its employees.
7. Disclosure to law enforcement
Provider may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.
8. Accounts that Are Past Due
Your account will be considered Past Due if not paid in full based on the terms of your invoice. A late fee of 10% of the invoice value will be added to your Account every time it is past due for more than 15 days. Every effort will be made to e-mail you one additional invoice as a reminder. If you account remains Past Due for a period of 30 days or longer, it may be suspended without and further notice. This means your web site and e-mail services (if based on your domain) will be unavailable for use. A $25 reconnect fee will be applied to all suspended accounts in addition to any late fees. Your account will remain suspended until the balance is paid in full.
9.1. Your Warranties to Provider
9.1.1. You represent and warrant to Provider that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide Provider with material that may be implemented by it to provide the Services without extra effort on Provider’s part; and (iii) you have sufficient knowledge about administering, designing, and operating the functions facilitated by the Service to take advantage of it.
9.1.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all material provided to Provider, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
9.2. Provider’s Warranties
9.2.1. YOU EXPRESSLY AGREE THAT USE OF A PROVIDER’S SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, PROVIDER HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER PROVIDER, ITS EMPLOYEES, AGENTS, RESELLERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT PROVIDER’S SERVICES WILL NOT BE INTERRUPTED OR BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH PROVIDER’S NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. PROVIDER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY PROVIDER. NO WARRANTIES MADE BY THESE THIRD PARTIES TO PROVIDER SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
9.2.2. THE WARRANTY DISCLAIMERS CONTAINED IN THIS AGREEMENT EXTEND TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM PROVIDER, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
9.2.3. SOME STATES DO NOT ALLOW PROVIDER TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
9.3. The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods.
10. Limitation of Liability
10.1. YOU ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY YOU FOR ONE (1) MONTH OF SERVICE.
10.2. PROVIDER SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA OR CORRUPTION OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF PROVIDER NETWORK, RECLAMATION OF SERVERS BY PROVIDER, FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF PROVIDER. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON PROVIDER NETWORK OR ANY SERVER OWNED OR OPERATED BY PROVIDER. IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE BILLING CYCLE IMMEDIATELY PRECEDING SUCH CLAIM. PROVIDER PROVIDES ALL PRODUCTS AND SERVICES “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND PROVIDER SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST PROVIDER MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE RECEIPT OF A SERVICE CREDIT AS PROVIDED FOR IN THE SLA CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND PROVIDER’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY FAILURE OF PROVIDER NETWORK, PROVIDER HARDWARE OR PROVIDER INFRASTRUCTURE OR THE FAILURE BY PROVIDER TO PROVIDE CUSTOMER WITH THE PRODUCTS AND SERVICES OR MANAGED HOSTING SERVICES PURCHASED BY CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT WHICH RESULTS FROM A QUALIFIED NETWORK DOWNTIME EVENT OR ANY OTHER QUALIFIED DOWNTIME EVENT.
11.1. You agree to indemnify, defend and hold harmless Provider, and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and collectively, “indemnified parties”) from and against any and all claims, damages, losses. liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of Provider’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services the use of which is facilities by Provider.
12. Governing Law and Disputes
12.1. This agreement shall be governed by the laws of the State of New Hampshire, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Merrimack County, New Hampshire, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
13. Partial Invalidity
13.1. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Provider and Customer agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision.
14. Changes to the Terms of Service
14.1. From time to time, Provider may change this Agreement. Provider will provide you with notice of material changes via the e-mail address associated with the Customer’s account, and by posting online at www.windhill.com/terms-conditions. It is your responsibility to check for any such notices. Your continued subscription to and payment for Provider’s services after the effective date of the change constitutes your acceptance of such changes. Provider is not making any representation regarding the availability of any Product or Service, which may be changed of discontinued.
15.1. This Agreement may be assigned by Provider. It may not be assigned by you. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
16. Force Majeure
16.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
17. No Waiver
17.1. No waiver of rights under this Agreement or any Provider policy, or agreement between Customer and Provider shall constitute a subsequent waiver of this or any other right under this Agreement.
18. No Agency
18.1. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
19.1. The following paragraphs shall survive the termination of this Agreement: 10 through 13, and 19.
20. HIPAA Disclaimer
20.1. We are not “HIPAA compliant.” Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Provider does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that Provider is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact us.
21. Email Accounts
21.1. We provide IMAP/POP email accounts for customers with hosted web sites for those that wish to use them as a courtesy service. These email accounts may be on a shared or dedicated server and may experience deliver ability issues due to the nature of email services. Our ability to support hosted email accounts is to ensure that email can be sent to and from the account as tested by using WebMail. Given the wide range of email clients like smart phones and Outlook, we are not able to assist with configuring email clients beyond providing account settings. Customers are responsible for backing up email messages and files and provider is not liable for any loss of email messages, business or other issues relating to emails that cannot be delivered or sent. If email is critical to your business, we can recommend alternative email services like Google’s GSuite that can provide a higher level of functionality.
22.1. Customer agrees that bandwidth usage shall not exceed the number of Gigabytes per month for the Products and Services ordered by Customer on the Order Form (the “Agreed Usage”) without overage fees and/or penalties occurring. Provider will monitor Customer’s bandwidth and reserves the right to take corrective action if Customer’s bandwidth exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Products and Services, or termination of these Terms of Service, which actions may be taken by Provider in its sole and absolute discretion. If Provider takes any corrective action under these Terms of Service, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. Bandwidth usage is measured on a monthly basis with the server start date serving as the beginning of the monthly bandwidth measuring cycle. Only outgoing traffic is counted and applied towards the Agreed Usage. In the event that Customer exceeds the Agreed Usage, Provider may, at its sole discretion, collect overage fees, in the amount of $0.05 per GB from Customer, or to the extent that Customer has a credit card on file with Provider, apply such charge against Customer’s credit card. Data transfer in excess of the Agreed Usage shall be automatically billed to Customer. Unused Agreed Usage or bandwidth allocations cannot be carried over to future months or applied to other servers.
23.1 Provider guarantees the uptime of its network 99.99% of the time excluding scheduled maintenance.
In the event any customer experiences anything less than 99.99% uptime of the Provider Network a credit will be added to the account upon request. Network downtime is defined as the inability to transmit or receive data due to the failure of Provider owned network equipment. Provider will provide a 5% credit to the affected server or shared account for each hour of downtime beyond 0.1% per month. No customer may receive credits totaling more than one month of service per affected server or shared account. Downtime is measured from the time a trouble ticket is opened by the affected customer to the time Provider determines the issue to be resolved, excluding scheduled maintenance.
24.1. All support requests should be sent to firstname.lastname@example.org for the fastest response. Requests made through other means may not be received or routed to the correct department as quickly and therefore may be overlooked or lost. Official response time will be determined by when such requests are sent to email@example.com only.
24.2. Support requests to fix, look at, research and/or address any issues relating to Services provided by Provider including but not limited to web content changes, bug fixes, incompatibilities with web browsers, plugin or CMS updates, backups, email support, site restoration and site repairs are subject to billable time at $110/hour in 15 minute increments. Customers may purchase a site maintenance plan and/or request access to their control panel to make changes themselves.
How To Contact Us
Should you have other questions or concerns about these privacy policies, please call us at 603-581-2675 or send us an email to firstname.lastname@example.org
Last Modified: September 14, 2017