Terms of Services Agreement (TOS)
Terms and Conditions
The following terms and conditions (“Terms of Service”) apply to the provision of Precise Virtual Development LLC, (Precise Virtual Development) web hosting technology services (“Services”) and to the Customer who orders Precise Virtual Development Web Hosting service (“Customer”)
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by these Terms and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your “client account” information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
Precise Virtual Development provides Internet web hosting and associated services via a virtual server network, managed by Precise Virtual Development and/or its’ contracted service providers. As such we provide varying hosting and related services:
Web Hosting – If you purchase Web Hosting, you are given control panel access to your site which is placed within a virtualized environment where resources which are utilized by customers on the same servers. Your site is given dedicated resources of storage, CPU, IO, memory, and processes within that environment.
Managed Hosting – If you purchase Managed Hosting we install WordPress, manage ongoing core WordPress security updates, patching and monitoring. We conduct malware scans on your account, manage daily/weekly/monthly back-ups and can perform data restores on your behalf.
Virtual Private Server VPS – If you purchase a VPS, your site will be in a virtualized environment where resources which are utilized by customers on the same servers. You will have full control over your server space and the complete configuration of your virtual instance. You will have administrator (root) access and a dedicated IP address. We will manage the server for you including setting up your control panel, patching cycles and back-ups.
Dedicated Server – If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, storage space, and technical flexibility. We will configure the server to your order specifications. You will have administrator (root) access and a dedicated IP address.
Private SSL Certificates – We offer private SSL certificates to you through third party provider(s). This TOC incorporates by reference our providers’ terms and conditions. Our SSL Certificates are only available to current customers with active Hosting Services.
You may need a dedicated IP address in order to use a private SSL Certificate. Unless explicitly stated otherwise, the fee for a dedicated IP is not included in the SSL purchase price.
Precise Virtual Development may act on your behalf for the purpose of approving your SSL certificate Order/Activation request/Renewal with the SSL provider. If you do not complete the SSL confirmation process up to five business days after your Order/Activation request/Renewal, your SSL will be canceled and no refund will be due.
We may provide certain SSL certificates for free as part of your Hosting Services or as part of a special promotion for a specific promotional Term. Any such certificate will be available for free use during the promotional Term as long as it is installed under an IP address within the Precise Virtual Development network. If you attempt to transfer away an SSL during the promotional Term, the discount or other benefit provided by the special promotion will be removed, and your account will be re-billed as if it had been set up without the special promotion. If this results in additional fees, you will be charged for those fees.
1. ORDERING SERVICES
1.1 For purposes of these Terms of Service an order means (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Precise Virtual Development for acceptance that describes the Services you are purchasing and the price of such Services, signed by Customer, either manually or electronically, and/or, (iii) your use of the Services, (“Order”).
1.2 Customer’s use of the Services is governed by these Terms of Service, which are incorporated by reference in the terms of your Order.
1.3 Customer’s use of the Services includes a representation that the individual placing the Order for Customer has the legal authority to enter into contractual commitments and make purchases for the Customer.
1.4 Precise Virtual Development’s obligation to begin providing Services is contingent on Customer’s satisfying Precise Virtual Development credit approval criteria. Further, Precise Virtual Development may, in its sole discretion, accept or reject any Order Customer submits.
1.5 Customer warrants and represents that the Order is placed on behalf of a business and not a consumer.
1.6 The provision of the Services described in an Order constitutes Precise Virtual Development’s acceptance of the Order.
2. PRECISE VIRTUAL DEVELOPMENT OBLIGATIONS
Precise Virtual Development will provide Services to “Customer” subject to these Terms of Service.
3. CUSTOMER OBLIGATIONS
3.1 “Customer” agrees: (i) comply with applicable law and these Terms of Service, (ii) pay the fees for the Services when due, (iii) cooperate with Precise Virtual Development’s investigation of service outages and any suspected breach of these Terms of Service, and (iv) ensure your customer account information as it appears in the online control panel is true, accurate, and complete.
3.2 “Customer” may resell the Services, in compliance with the terms of these Terms of Service. “Customer” remains responsible for use of the Services by any third party to the same extent as if Customer were using the Services. If you resell any part of the Services that include Microsoft software, then you must include those Microsoft terms, and the terms of Acceptable Use defined in paragraph 4 below, in an enforceable agreement with your customers.
3.3 “Customer” is solely responsible for the security and content of all Customer data stored in Precise Virtual Development’s hosted environment and all such data is and at all times shall, remain Customer’s exclusive property (”Customer Data”).
3.4 “Customer” is solely responsible for: (i) determining the suitability of the Services in light of the type of Customer Data stored by you or your end-user(s); (ii) the use of Precise Virtual Development’s hosted environment tool and/or the Services by any of your employees or other user(s) who, either with or without Customer’s authorization, gain access to the hosted environment; and (iii) taking all commercially reasonable steps to mitigate the risks inherent in transmitting Customer Data to and from and while stored on the hosted environment using the Services, including any Customer Data loss or corruption.
3.5 Customer shall encrypt at the application level all data, considered sensitive data, which must be treated as confidential under state or federal law or under Customer’s contractual obligations to others. Sensitive data includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder).
3.6 Customer shall be responsible for maintaining all backups for all Customer Data on servers not covered by Precise Virtual Development’s Bare Metal Managed Backup. In the event Precise Virtual Development provides backup assistance on servers not covered by Bare Metal Managed Backup, it is provided, without additional charge, as a courtesy (“Courtesy Support”) to Customer. Precise Virtual Development has no liability for any loss or corrupted Customer Data resulting from the provision of Courtesy Support.
3.7 Customer is responsible for selecting and securing the appropriate authentication procedures to allow access to Customer’s account. The customer is not authorized to provide account access, passwords, or passphrases for Precise Virtual Development technical support to any third party.
3.8 Customer shall only use or allow the use of the Services in compliance with the terms of paragraph 4, (Acceptable Use) of these Terms of Service.
3.9 Customer shall promptly notify Precise Virtual Development of any data breach or unauthorized access to Precise Virtual Development’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with Precise Virtual Development’s investigation and resolution of the reported breach or unauthorized access.
4. ACCEPTABLE USE
4.1 Customer shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
4.2 Customer is responsible for all acts and omissions of its users in connection with receipt or use of the Services. Customer agrees, and will ensure its users agree, to act responsibly and not use the Services for any illegal or unauthorized purpose including, but not limited to:
- Hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using malware, spyware, copyrighted infringement under the Digital Millennium Copyright Act (“DMCA”), trademark infringement, sharing illegal software, and any unauthorized use of images, internet accounts or computers or any activity that would violate the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003.
- For the purposes of Acceptable Use, the term Spamming includes, but is not limited to: (i) sending unsolicited outbound bulk email regardless of the content; (ii) Junk mail; (iii) unsolicited commercial email; (iv) unsolicited instant messaging; (v) unsolicited mobile phone messaging advertising; (vi) email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner and (vii) mailing lists without closed-loop (“Confirmed Opt-in”), subscription confirmation without retained messages and/or unsubscribe links.
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network.
- Intentionally or recklessly introducing any virus or other contaminating code into the Precise Virtual Development hosted environment.
- Collecting or using information, including email addresses, screen names or other identifiers, by deceit, (such as, phishing, Internet scamming, password robbery, spidering, and harvesting).
- Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting.
- Distributing software that covertly gathers or transmits information about a user.
- Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, and forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses.
- Interference with service to any user of the Precise Virtual Development hosted environment including, without limitation, mail bombing, flooding, or deliberate attempts to overload a system and broadcast attacks.
- Any action that directly or indirectly results in any of Precise Virtual Development’s IP space being listed on any abuse database (i.e. Spamhaus).
- Conducting any gambling activity in breach of the terms paragraph 4.1.
- Distribution or any other use of copyrighted material not owned by Customer or Customer’s end-user.
- Any action that is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Precise Virtual Development.
- Content that incites violence, threatens violence, is excessively violent or contains harassing content or hate speech.
- Any action that results in Customer’s official listing on the Register of Known Spam Operations (ROKSO) database maintained at https://www.spamhaus.org/rokso/
- Use of public proxies, Internet Relay Chat (IRC), or any application layer protocol when utilized to mask activities defined as malicious within these terms.
4.3 Customer may not use any shared system provided by Precise Virtual Development in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system.
4.4Customer agrees that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
5. TERMINATION FOR VIOLATION OF ACCEPTABLE USE
5.1 Precise Virtual Development has the right to investigate potential violations of paragraph 4. If Precise Virtual Development determines that a breach has occurred, then Precise Virtual Development may, in its sole discretion:
- Restrict Customer’s and its users’ access to the Services;
- Remove or require removal of any offending Content;
- Terminate this Agreement for cause;
- Exercise any other rights and remedies it may have, at law or in equity.
5.2 Except in an emergency or as may otherwise be required by law, before undertaking the actions in paragraph 5.1, Precise Virtual Development will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify Precise Virtual Development of any event or circumstance related to this Agreement, Customer’s or any user’s use of the Services, or content of which Customer becomes aware, that could lead to a claim or demand against Precise Virtual Development, and Customer will provide all relevant information relating to such event or circumstance to Precise Virtual Development at Precise Virtual Development’s request.
6. TERM AND RENEWAL
6.1 Term. The initial term for each Order begins on the effective date stated in an Order or, if no effective date is stated, the initial term shall begin on the date Precise Virtual Development makes the Services available for Customer’s use (“Effective Date”) and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one (1) month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one (1) month each, unless and until either party gives the other a written notice of non-renewal prior to the expiration of the initial term (or then-current renewal term, as applicable, following the process in 6.2 below.
6.2 Cancellation/Non-Renewal. Customer may give notice of non-renewal or cancellation by logging into their account on clients.getpvd.net and submitting a cancellation ticket. No other form of cancellation will be effective and the month-to-month agreement for services is automatically renewed each month until such notice of cancellation ticket is provided.
7. BILLING AND ACCOUNT SET-UP
7.1 Precise Virtual Development will charge Customer and Customer agrees to pay, when due, the fees for the Services in accordance with its Order. Unless other payment methods have been approved, Precise Virtual Development will charge Customer’s credit card monthly, beginning on the Effective Date and continuing on the same date each successive month until the end of the term. Customer shall pay all applicable taxes arising from Customer’s use of Services or Customer’s payment of amounts due to Precise Virtual Development under the Order.
7.2 Precise Virtual Development may increase fees for the Services provided under an Order upon thirty days advance written notice as follows:
- For Services provided on a month-to-month term, Precise Virtual Development may increase fees effective the first day of the next month following the notice period.
- For services provided over a term greater than one month, Precise Virtual Development may increase fees for the services provided under an Order as of the first day of the next renewal term beginning more than thirty (30) days from the date following the notice period.
7.3 Precise Virtual Development may suspend all Services (including services provided under multiple Orders or other contracts with Customer) if charges to Customer’s credit card or other payment facility are rejected, or Customer fails to make payment by an agreed upon alternative payment method. Precise Virtual Development may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%).
7.4 In the event Precise Virtual Development brings a legal action or engages a collection agency to collect Customer’s unpaid balances, Customer will be liable for payment of all reasonable costs of collection, including legal fees and court costs. Any “credit” that Precise Virtual Development may owe Customer, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund.
7.5 Refunds and Guarantees:
- Refunds for prepaid Services will be given for full months only in accordance with the terms of the applicable Service Level Agreement.
- To be eligible for a refund or claim an SLA guarantee, Notice of cancellation must be given before the month in question begins. Setup fees are not refundable. The cost of the domain will be deducted from the money refunded if the user’s domain was registered via Precise Virtual Development’s domain.
7.6 If there is a dispute with respect to any portion of an invoice, Customer shall pay the undisputed portion of the fees when due and provide written details specifying the basis of any disputed portion of the invoice.
7.7 Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate.
7.8 Customer authorizes Precise Virtual Development to obtain a credit report on Customer at any time during the term of an Order.
8. SUSPENSION OF SERVICES / REACTIVATIONS / RESTORATIONS
8.1 Precise Virtual Development may suspend some or all of the Services without liability to Customer if Customer (i) fails to pay the applicable fees for the Services when due (ii) the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of these Terms of Service; (iii) Customer fails to cooperate with an investigation of any suspected breach of the Acceptable Use provisions of these Terms of Service; (iv) Precise Virtual Development reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer’s consent, or (v) suspension of services is reasonably necessary to protect Precise Virtual Development’s hosting environment and/or its customers.
8.2 Precise Virtual Development will provide Customer reasonable advance notice of a suspension based on a violation of these Terms of Service and a chance to cure the violation on which the suspension is based, unless Precise Virtual Development determines, in its reasonable commercial judgment, that an immediate suspension is necessary to protect Precise Virtual Development’s network and its customers’ data from an imminent, significant operational, network integrity or security risk.
8.3 Suspensions based on Customer’s breach of these Terms of Service will not relieve Customer’s obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this paragraph will be terminated upon Customer’s cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days from the date on which the breach occurred, the suspension may be treated as a termination for Cause. If Customer’s Services are compromised, then Customer must resolve the cause of the compromise before Precise Virtual Development will reinstate service.
8.4 In the case that Service is suspended for Customer’s breach of these Terms of Service Precise Virtual Development shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. Precise Virtual Development may at its own discretion allow access to a suspended account.
8.5 In the event that an account is deactivated due to nonpayment, customers can reactivate their account within 90 days by logging into clients.getpvd.net and paying the overdue amount.
8.6 In the event that an account is deactivated due to nonpayment, after 90 days customers can request a restoration by account by logging into clients.getpvd.net and paying the designated restoration fee plus any overdue amount.
9.1 Customer may upon written notice, cancel an Order for breach of these Terms of Service if Precise Virtual Development (i) materially fails to provide the Services as agreed and does not remedy that failure within fifteen (15) days of your written notice describing the failure; (ii) materially fails to meet any other obligation stated in the Order and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure. Monthly service agreements will remain active until the 27th day of the month in which you have requested cancellation. Plan requests received after the 27th of the month will be processed on the 27th of the following month.
9.2 Precise Virtual Development offers a 30-day money back guarantee on all hosting plans. However, this shall not apply to any waived or non-waived setup fees, migration fees, administrative fees, or domain registration fees. Any hosting prepayment “credit” will be refunded within 60 days. Precise Virtual Development reserves the right to null and void the money back guarantee for any violation of this Terms of Service or Acceptable Use Policy.
All refund requests after the initial 30 days of service will be refunded at a proactive rate for the unused time. Precise Business Class Web Hosting reserves the right to null and void the money back guarantee for any violation of this Terms of Service Agreement, Acceptable Use Policy, or any reason deemed as just by Precise Business Class Web Hosting.
Only first-time signups will be allowed to utilize our 30-day money back guarantee. For example, if you have had an account with us, canceled and signed up again, you will not be allowed to utilize our money back guarantee. This also applies to current customers who sign up for a second account.
9.3 In the event that a customer wishes to terminate early a quarterly, semi-annually, or annual hosting services after the first 30 days of their term, they may cancel with a written or faxed notice of cancellation. Any waived setup fees and migration fees may be forfeited and deemed payable.
9.4 Precise Virtual Development may, upon written notice, cancel an Order if Customer (i) provided materially inaccurate or incomplete information for the purpose of obtaining the Services; (ii) Customer did not have the legal right or authority to enter the Order; (iii) Customer fails to make payment of any invoiced overdue amount within five (5) Business Days of our written notice of delinquency; (iv) Customer made payment arrangements via credit card or other third parties, and the third party refuses to honor or reverses Precise Virtual Development’s charges; (v) Customer is in breach of the Acceptable Use provisions of these Terms of Service and (v) Customer fails to comply with any other obligation stated in the applicable Order and does not remedy the failure within fifteen (15) days of Precise Virtual Development’s written notice to Customer describing the failure.
9.5 Either party may cancel an Order with immediate effect on written notice if the other party (or we reasonably believe that the other party) (i) is unable to pay its debts; (ii) enter into compulsory or voluntary liquidation; (iii) convenes a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an “Insolvency Event”). Notwithstanding anything to the contrary in the Order, the fees for the Services shall become due immediately upon the occurrence of an Insolvency Event.
10. HOSTING SERVICES/TECHNICAL SUPPORT/LIMITED WARRANTY
10.1 Precise Virtual Development technical support services are provided via phone, email, and LiveChat. Precise Virtual Development has four categories of technical support (i) Fully Managed, (ii) Core Managed, (iii) Self-Managed and (iv) Courtesy Support.
10.2 Precise Virtual Development technical support is available only to its Customers.
10.3 Precise Virtual Development has no support obligation to any other party.
10.4 Dedicated Server Support: Precise Virtual Development provides Basic technical support and maintenance of dedicated servers at the rate specified in Customer’s Order. Additional technical support will be provided, as agreed upon between the parties from time to time.
10.5 Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
10.6 Precise Virtual Development has limited obligation to provide security other than as expressly stated in the agreement or order.
10.7 Some of the Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the legal and regulatory requirements applicable to you and your use of the Services, and for selecting and using those Services in a manner that complies with your obligations under the Agreement and the applicable legal and regulatory requirements.
10.8 Precise Virtual Development personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. Precise Virtual Development makes no representation or warranty whatsoever regarding products and services that are not purchased from Precise Virtual Development or produced/manufactured by Precise Virtual Development. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
10.9 Precise Virtual Development may periodically run security scans on hosting accounts. A specific user account will be present on all Fully-Managed accounts for the purpose of security scans and other management functions.
11. PRODUCT SALES TERMS
11.1 Customer acknowledges that Precise Virtual Development is reselling (and not itself providing) products purchased by the customer including, without limitation, hardware, software and/or software licenses (“Product(s)”)
11.2 Precise Virtual Development shall pass through to Customer, the manufacturer’s warranties for each Product and agrees to facilitate utilization of manufacturer’s product return policies. In no event will Precise Virtual Development provide product return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).
11.3 Customer acknowledges the terms and conditions governing the use of such Products shall be solely between Customer and the manufacturer.
11.4 Customer will not use the Products sold by Precise Virtual Development for use in life support, life-sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Customer agrees that Precise Virtual Development is not liable, in whole or in part, for any claim or damage arising from the use of such Products.
11.5 All shipments of Products by Precise Virtual Development to Customer are FOB point of shipment. Insurance coverage, transportation costs, and all other expenses applicable to shipment from Precise Virtual Development to Customer’s identified point of delivery will be the responsibility of the Customer.
11.6 Risk of loss will pass to the Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or the Customer’s representative at Precise Virtual Development’s point of shipment.
11.7 Customer grants Precise Virtual Development a security interest in and to the Products as security for payment in full of the purchase price. Customer authorizes Precise Virtual Development to file and/or record any documents it deems necessary to perfect this security interest.
11.8 Customer will obtain all licenses, permits, and approvals for the use of the Services or Products, which may be required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
12. BANDWIDTH PACKAGES
Bandwidth usage for bundled bandwidth packages, for Internet data transfer, will be calculated based upon outgoing bandwidth transfer. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is free of charge. If your actual data transfer usage exceeds the amount of your bandwidth package you will be charged a bandwidth overage fee in addition to your Bundled Bandwidth Charge. The bandwidth overage fee will be specified in your order.
13. WARRANTY DISCLAIMERS
13.1 PRECISE VIRTUAL DEVELOPMENT DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, INCLUDING IMPLIED TERMS CONDITIONS OR WARRANTIES RELATING TO SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13.2 ALL SERVICES PROVIDED BY PRECISE VIRTUAL DEVELOPMENT ARE ON AN “AS IS” BASIS AND PRECISE VIRTUAL DEVELOPMENT MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PROVISION OF SUCH SERVICES.
13.3 AS A RESULT, THE CUSTOMER AGREES THAT PRECISE VIRTUAL DEVELOPMENT SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY CLAIMS, DAMAGES OR LOSS OF PROFIT WHICH MAY BE SUFFERED BY THE CUSTOMER OR ANY OTHER ENTITY IN ANY RESPECT FOR DIRECT, INDIRECT, CONSEQUENTIAL, ACTUAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN RELATION TO THE SERVICES PROVIDED HEREIN, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES RESULTING FROM THE LOSS OF DATA AS THE RESULT OF DELAYS, NON-DELIVERIES, OR SERVICE INTERRUPTIONS.
14. CONTENT DELIVERY NETWORK
When using the Precise Virtual Development Content Delivery Network (CDN) Customer is responsible for all bandwidth costs associated with the delivery of content over the public Internet, including any content delivery caused by unauthorized use of your CDN connection. In the event of “hot-linking” capability, the customer remains responsible for all network usage.
15. SCHEDULED MAINTENANCE AND DOWNTIME
15.1 Precise Virtual Development will use its commercially reasonable efforts to provide services 24 hours a day, seven days a week.
15.2 Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including:
- Periodic maintenance procedures or upgrades (“Scheduled Downtime”)
- Service malfunctions, and causes beyond Precise Virtual Development’s control or which are not reasonably foreseeable by Precise Virtual Development, including the interruption or failure of telecommunications or digital transmission links.
- Hostile network attacks, or network congestion or other failures.
15.3 Precise Virtual Development is not responsible for any downtime caused by conditions specified in 15.2 or due to Customer’s actions that breach any term of this Order.
15.4 Precise Virtual Development may provide notice to the Customer for non-emergency maintenance or Scheduled Downtime, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers.
16.1 Customer agrees to indemnify and hold Precise Virtual Development, and each of its directors, officers, employees, and agents (each an “Indemnified Party”) harmless from any and all damages, liabilities, fines, penalties, losses and/or claims of whatsoever kind or nature, arising from the Customer’s use of Precise Virtual Development’s hosted environment or the Services.
16.2 Precise Virtual Development may from time to time, at the request of the Customer, be enlisted to perform server administration tasks on Customer hardware, which is co-located at a Precise Virtual Development facility (“Remote Hands Service”). Customer agrees and holds Precise Virtual Development harmless against any damage caused to Customer in the performance of Remote Hands Service.
Customer represents and warrants:
- That Customer is not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to which Precise Virtual Development is legally prohibited from providing the Services
- Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any Information or technical data provided by Precise Virtual Development under these Terms of Service or any Order or agreement in which they are incorporated in any manner which would cause Precise Virtual Development to breach any applicable export control laws, rules, or regulations.
- Customer represents, and warrants without limitation, that it will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations.
18. PROMOTIONAL USE
Customer grants Precise Virtual Development a non-transferable, non-exclusive license to utilize Customer trademarks and logos for Precise Virtual Development promotional materials.
19. OWNERSHIP OF SERVICES/INTELLECTUAL PROPERTY
19.1 No work or professional services performed and/or provided by Precise Virtual Development under this Order shall be deemed to be “Work For Hire” and shall remain at all times the sole property of Precise Virtual Development. For so long as Customer is not in default on any obligation under these Terms and Conditions, Precise Virtual Development grants, Customer a non-exclusive, non-transferable license to use the work product of such services. Such license terminates upon the termination of the applicable Order or agreement pursuant to which they were performed.
19.2 All software that is provided to Customer is subject to these Terms of Service and any Order or agreement in which they are incorporated including software that we may authorize you to install on devices located outside of our data center. Customer shall not use any software provided by Precise Virtual Development after the expiration or termination of these Terms of Service or any Order or agreement in which they are incorporated.
19.3 Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide you.
19.4 Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software we provide for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do so and then following at a minimum of ten (10) days’ advance written notice to Precise Virtual Development. Any additional restrictions, which may apply to software we utilize in the performance of the Services, will be specified in the applicable Order.
19.5 Where specifically prohibited, Customer shall not mix software license ownership when utilizing Precise Virtual Development services. In such cases, where the Customer provides all licensed products, including the OS, all licenses must be provided by the Customer and may not be mixed with Precise Virtual Development licensed products. Requirements vary by software vendor.
20. LIMITATION OF DAMAGES AND LIABILITY
EXCEPT AS OTHERWISE PROVIDED IN AN APPLICABLE SERVICE LEVEL AGREEMENT, PRECISE VIRTUAL DEVELOPMENT’S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM. FOR REMOTE MANAGEMENT OF CUSTOMER’S ENVIRONMENT AND/OR PRECISE VIRTUAL DEVELOPMENT CLOUD SERVICES, THE TOTAL LIABILITY OF PRECISE VIRTUAL DEVELOPMENT FOR THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS SHALL NOT EXCEED AN AMOUNT EQUAL TO THE MOST RECENT SIX MONTH’S BASE CHARGE FOR THE SERVICE (S) THAT IS THE BASIS FOR THE PARTICULAR CLAIM. PRECISE VIRTUAL DEVELOPMENT WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF PRECISE VIRTUAL DEVELOPMENT HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
21. NO WAIVER
The failure of either party to insist upon strict performance of any of the provisions of these Terms of Service will not be deemed a waiver of any breach or default. The remedies provided to Precise Virtual Development hereunder are not a waiver of the remedies of Precise Virtual Development under applicable law.
22. LIMITATION OF ACTION
The Customer may bring no action, regardless of form, arising out of or relating to an Order, more than three (3) months from the date on which the cause of action accrues. The parties expressly agree that this part, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto. All periods of limitation otherwise applicable to actions by Precise Virtual Development remain as provided by law.
23. DISPUTE RESOLUTION
All disputes between Precise Virtual Development and a Customer shall be determined by a final and binding arbitration conducted by the American Arbitration Association pursuant to its then-current commercial arbitration rules. The arbitrator shall decide any dispute in accordance with New Jersey law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in Somerset County, New Jersey unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.
24. CONFIDENTIAL INFORMATION
Information designated as confidential by either Precise Virtual Development or Customer, whether before or after the effective date of these Terms of Service shall be held in strict confidence and used only for purposes of these Terms of Service. Except as required by law, no Confidential Information shall be disclosed without the prior written consent of the party designating the information as confidential. If either party is legally required to disclose any confidential information of the other party, the party so required shall notify the other party immediately and shall cooperate in seeking a reasonable protective order. This Section shall not apply to information, which is (i) in the public domain, (ii) already known to the recipient, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.
If any provision of these Terms of Service is unenforceable as a matter of law, all other provisions will remain in effect.
26. EXCUSABLE DELAY
Precise Virtual Development will not be liable for any delay or failure of performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics or other circumstances beyond Precise Virtual Development’s control.
27. BINDING TERMS AND CONDITIONS
27.1 These Terms and Conditions are incorporated in Customer’s Order by reference to Precise Virtual Development’s website getpvd.com/legal/tos In the event Precise Virtual Development revises the Terms of Service on its website, those revisions will not be effective as to an Order that we accepted prior to the date Precise Virtual Development posted the revision and your Order will continued to be governed by the Terms of Service posted on the effective day of the Order.
27.2 By opening an account, or by the use of any Precise Virtual Development service, the Customer agrees to be bound by these Terms and Conditions.
28. NO PARTNERSHIP
The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other; neither party has the right to bind the other to any agreement with a third party.
29. ASSIGNMENT AND SUBCONTRACTING
Neither party may assign an Order in whole or in part without the prior written consent of the other party, provided however, Precise Virtual Development may assign an Order in whole or in part to an affiliate with sufficient financial standing in order to meet its obligations under the Order or as part of a bona fide corporate reorganization or a sale of its business, and we may transfer your Confidential Information as part of any such transaction. Precise Virtual Development may use affiliates and third party service providers to perform all or any part of the Services, but Precise Virtual Development remains responsible to you under the Order for Services performed by its Affiliates and third party service providers to the same extent as if Precise Virtual Development performed the Services.
30. RIGHT TO REFUSAL OF SERVICE
Precise Virtual Development may refuse to accept any customer order or any website from using our services as determined by Precise Virtual Development at its sole discretion.
This Terms of Service Agreement together with the Order and Acceptable Use Policy constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.