TERMS OF SERVICE AGREEMENT
The following Terms of Service (“TOS”, “Agreement”) is entered into by and between Emergence Digital (“Company”, “Host”, “us”, “we”, “our”), with its principal place of business located in Scottsdale, AZ and you (“Client”, “Customer”, “you”, “user”), collectively (the “Parties”).
This Agreement sets forth the general terms and conditions of your use of this site and the products and services purchased or accessed from Emergence Digital.
2. APPLICATION OF TERMS
These TOS apply to all Services provided by Emergence Digital to you throughout the entire Term or Renewal Term. The TOS consists of the following: Service-level Agreement (SLA), Acceptable Use Policy (AUP). Collectively these documents are referred to herein as the “TOS.” They are referred to by their individual names if a particular paragraph applies to that document alone. This TOS, together with your Order, represents the entire Agreement relating to the Services and supersedes any other TOS agreement previously established between you and Emergence Digital.
This TOS is made effective as of the date (the “Effective Date”) of your use of this website, or the date of electronic acceptance, or the date of purchasing one or more Services from Emergence Digital. By accepting, you expressly declare that you have read, understand and agree to be bound by this TOS. The latest version of our TOS is always available on our website, EmergenceDigital.com. It is essential that you read this TOS prior to purchasing any Service(s) from us.
For the purposes of this Agreement the following definitions will be used.
“Order” means the method used to purchase or renew Service(s) from Emergence Digital. The Order also contains transactional data related to the Services purchased.
“Service” or “Services” means any services provided by Emergence Digital under this SLA including, without limitation, any of our subscription plans, retainer packages, website migration services, support services, hosting services, and any other services offered on our Website.
“Term” means either the initial term or the then-current renewal term.
5. DESCRIPTION OF SERVICES AND SUPPORT
Website Development: We are the experts when it comes to building innovative WordPress websites that drive results and solve problems. Each website we launch is crafted to meet the specific needs of each client, and to be carefully optimized for search engines, speed, and mobile devices. Most new website projects are billed according to a flat-rate fee or time and materials based fee.
Fully Managed Hosting: We offer fully managed hosting packages that are meant to make your hosting experience easy and worry-free. Our managed hosting services encompass administrative tasks such as: server upkeep, resource management, networking configuration, server-level caching, website backups, WordPress updates, security updates, etc.
Stand-Alone Services: This term applies to any marketing, web development, or design services that are offered on our website. Some examples include: SEO improvements, performance optimization, bug fixing, new website development/additions, WordPress training, and content/copywriting services. Such services are billed according to our standard hourly rate.
Core Support: This level of support is included in all our managed hosting packages. You can reach out anytime if you have general questions, or if you are experiencing an issue that is preventing the performance or availability of what is included with your current hosting package.
Pro Support: This level of support extends beyond the scope of Core Support, allowing you to use your allocated Pro Support hour(s) for any of our Stand-Alone services. Pro Support hour(s) are included for those who have an active DELUXE or ULTIMATE hosting package. Additional hours may be purchased according to the available packages on our website. Such hours are provided at a significant discount (up to 50% off) compared to our standard hourly rate, therefore, these hours do not roll over and expire at the end of each month.
6. HOSTING TERM AND TERMINATION
INITIAL TERM. Starting on the Effective Date, Client agrees to an initial twelve (12) month contractual Term of service for any hosting package purchased.
RENEWAL. Term will automatically renew for successive twelve (12) month Terms, unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change and will be automatically invoiced to Client.
FIRST PAYMENT. The first payment plus setup charges, if any, shall be due in advance of any Service provided. Service shall begin upon Company receipt of payment for such Term or upon a mutually agreed upon alternate date.
TERMINATION. Client may terminate this Agreement without cause upon at least thirty (30) days written notice to Company. Company may terminate this Agreement without cause upon at least sixty (60) days written notice to Client. In the event that either party terminates this agreement, Company will arrange to return to Client all data stored in Client’s account, in a “commercially readable format”, within 24 hours of the effective date of termination. Payments made for hosting will not be refunded in the event of early termination.
SUSPENSION. If Client’s account is suspended due to lack of payment, Client will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
7. TERMS OF SUPPORT
ADDITIONAL WORK. Work beyond your allocated Pro Support hours will be billed at our standard rate $120 per hour. We will, within fourteen (14) days, provide complimentary fixes for any errors that were a result of our work performed. We are not responsible for and will not provide complimentary assistance with any issue(s) that arise beyond fourteen days (14) of the Work performed.
CORE SUPPORT: Core support is available for all hosting customers and is provided on an as-is, as available basis.
PRO SUPPORT HOURS. Alternatively, you may purchase additional Pro Support hours at a discounted rate. Additional Pro Support hours may only be purchased according to the Pro Support hour packages available on our website. These hours are provided at significantly reduced rates (up to 50% off) compared to our standard hourly rate, therefore, these hours do not roll over and expire at the end of each month.
UNUSED HOURS. Unused hours do NOT carry over to the following month(s). Client is encouraged to use the full amount of Pro Support hours per month.
WORK OUTSIDE OF SCOPE. Large projects such as major updates, redesigns, rebrands, or features additions that fall outside the scope of this Agreement may be estimated and invoiced separately at the Company’s discretion.
COMPANY AVAILABILITY: Company will be available to perform work and provide support to Client between the hours of 8AM – 6PM weekdays.
8. FEES AND PAYMENT
OVERVIEW. You are responsible for the payment of any Services which you are invoiced. All fees must be paid in advance for the entire Term that is specified in your invoice, and your account will not be activated or renewed until all outstanding fees are paid. The current fee(s) are listed on our website. Unless a specific agreement for use of the Service(s) exists between Company and you, you acknowledge and agree to pay the fee for the respective Service(s) indicated on our website at the time of your payment. We reserve the right to change the fees at any time without notification. Changes in fees shall be effective immediately and will apply for you as of your next purchase or renewal. All payments and fees are not refundable and non-transferable. Client may not withhold any amounts due hereunder and Company reserves the right to cease work without prejudice if amounts are not paid when due. All payments will be made in USD.
PAYMENT DELAYS. Invoices are due fifteen (15) days upon receipt. In case of delay in payment of any fees(s) due, for whatever reason, we may continue to attempt to collect payment, suspend, and/or terminate your Services. We are not responsible for any deleted or lost Customer Content that results from any suspension or termination of the Service(s).
ACCEPTABLE PAYMENT. Payments may be made by cash, PayPal, wire transfer, or credit card. Credit card payments are subject to an additional 2% processing fee.
EXPENSES. Client is responsible for the cost of any third party paid assets or additional services which are not included in this Agreement.
LATE FEES. Any invoice not paid within fifteen (15) days is subject to late penalty fees of 1.5% per month or the maximum allowed under state law from the due date until the amount is paid.
CHANGE IN PRICING. Company may change the prices charged for the Services upon forty-five (45) days written notice to Client. Any increase in hosting prices shall not exceed ten percent (10%) of the rate currently being charged at the time.
9. WARRANTIES, DISCLAIMERS AND LIABILITY
MUTUAL LIMITATION OF LIABILITY. In no event shall either party be liable to the other for sales, revenue, and/or the success of the Website/business directly, indirectly, or consequentially.
STORAGE AND SECURITY. Company takes every reasonable measure to ensure that your website and database is backed up on a regular basis, and kept secure. However, due to the nature of hosting, networks, and internet-related technology, we cannot guarantee the safety and availability of any of your information/data. We will not be held liable for the loss, damage, or theft of any of your data. You may, at any time, request a backup of your website files and database for your own safekeeping.
UNDERLYING SERVICE PROVIDER. We utilize and combine premium server technology, from reputable hosting provider(s), with our hosting services, to offer you fully managed hosting packages. Some of our hosting services, as described in this Agreement are supported by the underlying service provider, SiteGround, and our services are to manage the engagement of your digital space, including acting as your service provider. The cost of our hosting services include our service and expertise in setting up, managing, and monitoring your digital space, so you don’t have to.
INDEMNIFICATION. Client shall indemnify and hold Company harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Company directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.
MIGRATIONS. Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting migration. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host. You agree that we are not liable for any delay in website resolution or loss of data related to your hosting migration. Complimentary hosting migrations are not available for websites with over 2GB of data.
WARRANTY AND DISCLAIMER. Company warrants to Client that Company Content will substantially conform to all specifications set forth in this Agreement and for a period of fourteen (14) days after delivery. The warranties set forth in this Agreement are the only warranties granted by the Company, and disclaims all other warranties of any kind, whether express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
COMPANY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED FOR THE SERVICE IT IS PROVIDING. COMPANY ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY CLIENT, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE INTERRUPTIONS BY ANY CAUSE OR ERRORS OR OMISSIONS OF CLIENT. USE OF ANY INFORMATION OBTAINED BY WAY OF COMPANY IS AT CLIENT’S OWN RISK, AND COMPANY SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES AND WEBSITE.
You specifically acknowledge and agree that your use of this site and the services found at this site shall be at your own risk and that this site and the Services found at this site are provided “as is”, “as available” and “with all faults”.
In addition, you specifically acknowledge and agree that no oral or written information or advice provided by Company, its officers, directors, employees, or agents will not constitute legal or financial advice or create a warranty of any kind.
10. DISPUTE RESOLUTION
NEGOTIATION: In the event of a dispute, the Parties agree to work towards a resolution through good faith negotiation.
MEDIATION/ARBITRATION: If talking it over doesn’t go well, the parties agree to seek a suitable resolution through a neutral arbitrator, whose ruling shall be considered final and binding on both parties.
LITIGATION: If litigation is necessary, this Agreement will be interpreted based on the laws of the State of Arizona, regardless of any conflict of law issues that may arise. The Parties agree that the dispute will be resolved at a court of competent jurisdiction in the agreed upon State.
ATTORNEY’S FEES: The prevailing party will be able to recover its attorney’s fees and other reasonable costs for a dispute resolved by binding arbitration or litigation.
11. GENERAL PROVISIONS
CONFIDENTIALITY. During the term of this Agreement and afterward, the Company will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Reasonable care means at least the same degree of care the Company uses to protect its own confidential information from unauthorized disclosure. Confidential information is limited to information clearly marked as confidential. Confidential information does not include information that: the Company knew before Client disclosed it; is or becomes public knowledge through no fault of Company; Company obtains from sources other than Client who owe no duty of confidentiality to Client; or Company develops independently.
PROPRIETARY INFORMATION. Proprietary information exchanged here under shall be treated as such by Client. This information shall include, but not be limited to, the provisions of this Agreement, product and services information and pricing. Client further agrees to not decompose, disassemble, decode or reverse engineer any Company program, code or technology delivered to Client or any portion thereof.
INTELLECTUAL PROPERTY. Each party will retain exclusive interest in and ownership of its intellectual property developed before this agreement or outside the scope of this Agreement. Client hereby grants to Company a non-exclusive, non-transferable, non-sublicensable, world-wide, and royalty-free license to use Client’s pre-existing intellectual property solely for the purpose of providing the Services outlined in this Agreement. Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology. Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
WAIVER. If at any time during the term of this Agreement we fail to insist upon strict performance of any of your obligations under this Agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any term of this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated by you in writing.
ASSIGNMENT AND SUCCESSORS. You may not assign or transfer this Agreement or any of its rights or obligations hereunder, without our prior explicit written consent. We may in our absolute discretion sub-contract the performance of any of our obligations under this Agreement.
INDEPENDENT CONTRACTOR. Both Parties are independent contractors under this Agreement. Nothing herein contained shall be deemed to create an employment, agency, joint venture or partnership relationship between the Parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
SEVERABILITY. If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
NON-ASSIGNMENT. Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the Parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
ACKNOWLEDGEMENT. This Agreement contains the entire understanding of the Parties with respect to the matters herein contained and supersedes all previous agreements and undertakings with respect thereto. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona.
SURVIVAL. The foregoing disclaimer of representations and warranties shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of this site or the services found at this site.
FORCE MAJEURE. “Force Majeure” means anything outside the reasonable control of a party, including but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitation where the Host’s Hosting Service ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
CLIENT DEFAULT. The occurrence of any one of the following events shall constitute a default of the Client: (a) the abandonment of the website or failure to pay the fees which are due for a period of twelve (12) consecutive months; (b) failure in the performance of any of the Client’s obligations in this Agreement.
DOMAIN NAME REGISTRATION. On request, and subject to additional fees, the Host may register domain names on behalf of the Client. At no time does the Host represent that any particular domain name is available for registration. The registration and use of domain names is subject to the terms and conditions of the relevant naming authority. The contract for registration is between the Client and the domain name authority. If payments are not received in respect of domain name registrations the Host may cancel or retain them. The Host gives no warranty that the domain name will not infringe the rights of any third party. The Client is responsible for ensuring they have rights to use domain names that are registered through the Host and the Client hereby indemnifies the Host for any loss of whatsoever nature incurred by the Host in that regard. In the event of a dispute between the Client and third Parties in respect of the rights to domain names, the Host retains the right to suspend or cancel disputed domain names. Unless otherwise stated the Client has full responsibility for the renewal of the domain name.
12. SERVICE LEVEL AGREEMENT (SLA)
AVAILABILITY. The Client acknowledges that the Company’s server may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes.
SERVICE FAILURES. The Company agrees to rectify service failures and to restore the hosting service to operational capacity as soon as reasonably practicable; this does not cover the restoration of any client data. Company will attempt to restore Client data from the available backups, but makes no promises that the restoration will be successful.
EQUIPMENT AND ACCESS. The Client must provide, at its own cost, all telecommunications services, computers and other equipment or services necessary to enable it to have access to the Hosting Service. The Client will be provided access to their websites hosting control panel, upon request. This will allow the Client full access and control over their website files, database, and other available settings. Client accepts full responsibility for any damages, loss of data, or any other problems that may be a result of Client’s usage of their website’s control panel.
CONNECTION SPEEDS AND AVAILABILITY. Connection speed represents the speed of an end-to-end connection. Company does not represent guarantees of speed or availability of end-to-end connections. Company expressly limits its damages to Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Company specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
13. ACCEPTABLE USE POLICY (AUP)
OVERVIEW. This Acceptable Use Policy sets forth guidelines relating to the types of content that you may upload to the web servers under your agreement with Emergence Digital for web hosting services. Host may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in this Agreement.
THE FOLLOWING CONSTITUTE VIOLATIONS OF THIS ACCEPTABLE USE POLICY:
A. Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.
B. Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
C. Using the Services to harm, or attempt to harm, minors in any way.
D. Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.
E. Using the Services to make fraudulent misrepresentations or offers including but not limited to offers relating to “pyramid schemes” and “Ponzi schemes.”
F. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Host or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
G. Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
H. Using the Services to collect, or attempt to collect, personal information about third Parties without their knowledge or consent.
I. Reselling the Services without the prior written authorization of Host.
J. Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to “denial of service” (DoS) attacks against another network host or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited.
K. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the hosting services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites.
L. Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content.
M. The hosting services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one.
ACKNOWLEDGEMENT. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account. Host will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services.
REPORTING OF VIOLATIONS. Host requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately notify us at firstname.lastname@example.org
14. CHANGE OF TOS
NOTICE. We may modify these TOS at any time with immediate effect. We will inform you about modifications to the TOS by email. We shall not be liable for your failure to receive an email notification due to an inaccurate email address. If you do not agree to the changes in the TOS, you must suspend use of the Services and terminate this Agreement within ten (10) business days of receiving notification from us.
CONTINUED USE. To the extent permitted by applicable law, continued use of the Services after you have received a notice for changes to the TOS will be considered as acceptance of such changes, unless you have sent us a termination notice.