Terms of Service for Pro Epic Fusion Hosting, Web Site and Services
Last Updated: July 18, 2008
Pro Epic Fusion Hosting is a service of Pro Epic Technology Solutions
THIS AGREEMENT is made and entered into between Pro Epic Technology Solutions ("Pro Epic") and the SUBSCRIBER ("SUBSCRIBER") with respect to the service known as Pro Epic Fusion Hosting ("Pro Epic Fusion Hosting") which is owned by Pro Epic and which is a computer on-line service in which SUBSCRIBER shall have the right to operate its own system. Subject to the terms and conditions of this Agreement, Pro Epic authorizes SUBSCRIBER to access and utilize Pro Epic Fusion Hosting throughout the term of this Agreement.
1. Pro Epic Fusion Hosting. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to Pro Epic Fusion Hosting to that number of users ("USERS") for which Subscriber has paid the required fee in order for USERS to perform such activities as creating web pages, sharing files, sending e-mails and managing content and such other lawful purposes as Pro Epic Fusion Hosting permits. Pro Epic may, without advance notice or liability, add, discontinue, or revise any aspect of Pro Epic Fusion Hosting, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for SUBSCRIBER to access and use Pro Epic Fusion Hosting, subject to the terms and conditions of this Agreement.
2. SUBSCRIBER Equipment and Remote Connect Charges. SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize Pro Epic Fusion Hosting.
3. User Passwords and Use Thereof. All USERS will be responsible for maintaining the confidentiality of their passwords and SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of Pro Epic Fusion Hosting, including unauthorized use.
4. Conduct of SUBSCRIBER. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access Pro Epic Fusion Hosting shall use Pro Epic Fusion Hosting only for lawful purposes. SUBSCRIBER and its USERS will not post or transmit on or through Pro Epic Fusion Hosting any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving Pro Epic Fusion Hosting that would constitute a criminal offense or give rise to civil liability under any local, provincial, state, federal or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through Pro Epic Fusion Hosting any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Any complaint with regard to "SPAM" may result in the immediate termination of Subscribers access to Pro Epic Fusion Hosting. SUBSCRIBER acknowledges that Pro Epic Fusion Hosting, Pro Epic Fusion Hosting software and software accessible through Pro Epic Fusion Hosting contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure.
5. Accuracy and Validity of Information and Opinions. Pro Epic will make a reasonable effort to ensure that information it contributes to Pro Epic Fusion Hosting is timely and accurate. However, Pro Epic does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to Pro Epic Fusion Hosting.
6. Monitoring of Pro Epic Fusion Hosting. Pro Epic may, in its discretion, monitor Pro Epic Fusion Hosting and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other USERS of Pro Epic Fusion Hosting from fraudulent, unlawful, dangerous or abusive use of Pro Epic Fusion Hosting. Pro Epic may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of Pro Epic, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. Pro Epic may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to Pro Epic Fusion Hosting. Pro Epic will not, however, intentionally intercept or disclose any private e-mail message unless required or permitted by law to do so, and Pro Epic shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to Pro Epic Fusion Hosting.
7. Pro Epic Fusion Hosting Licenses. Pro Epic hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use Pro Epic Fusion Hosting and to have its USERS use Pro Epic Fusion Hosting in accordance with the terms and conditions of this Agreement. SUBSCRIBER agrees to respect the copyright and other proprietary rights of third party licensors of Pro Epic Fusion Hosting and to abide by the terms of license agreements applicable thereto and to ensure that its USERS also abide by the terms of license agreements applicable thereto.
7.2 Pro Epic is the copyright owner of Pro Epic Fusion Hosting. The technical procedures, processes, methods of operation, and concepts which are embodied within Pro Epic Fusion Hosting are trade secret information of Pro Epic and/or its licensor(s). This license is not a sale of a copy of Pro Epic Fusion Hosting and does not render SUBSCRIBER or its USERS the owner of a copy of Pro Epic Fusion Hosting. Ownership of Pro Epic Fusion Hosting and all components and copies thereof shall at all times remain with Pro Epic and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which Pro Epic Fusion Hosting may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to Pro Epic Fusion Hosting shall at all times be the property of SUBSCRIBER.
7.3 SUBSCRIBER and its USERS may not make any copies of Pro Epic Fusion Hosting. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of Pro Epic Fusion Hosting or disclosure or use of Pro Epic's or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to Pro Epic Fusion Hosting of he restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents.
7.4 SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of Pro Epic Fusion Hosting or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of Pro Epic
7.5 Subject to the limitations of paragraph 11, Pro Epic will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that Pro Epic Fusion Hosting infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: a) SUBSCRIBER notifies Pro Epic within seven (7) days in writing of any notice of any such claim; b) SUBSCRIBER cooperates with Pro Epic in all reasonable respects in connection with the investigation and defense of any such claim; c) Pro Epic shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should Pro Epic Fusion Hosting become, or in Pro Epic's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit Pro Epic, at Pro Epic's option and expense, either to: i) procure for SUBSCRIBER the right to continue using Pro Epic Fusion Hosting, ii) replace or modify the same so that it becomes non-infringing; or iii) terminate this license insofar as the use of Pro Epic Fusion Hosting is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to Pro Epic for the period for which such payment has not been earned. Notwithstanding anything herein to the contrary, however, Pro Epic shall have no obligation or liability to SUBSCRIBER under any provision of this paragraph if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of Pro Epic Fusion Hosting in a manner other than that for which it was furnished by Pro Epic or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing.
7.6 If Pro Epic Fusion Hosting does not conform to and perform substantially in accordance with Pro Epic's specifications, Pro Epic will endeavor to correct any failure of Pro Epic Fusion Hosting to so conform or perform; provided that: a) SUBSCRIBER gives Pro Epic written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; and b) such failure to so conform or perform is not, in Pro Epic's reasonable opinion, a result of any modification of or damage to Pro Epic Fusion Hosting or its operating environment or of SUBSCRIBER and its USER'S failure to operate Pro Epic Fusion Hosting in the proper hardware and software environment. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: a) Pro Epic will endeavor to correct within a reasonable time any reported failure of Pro Epic Fusion Hosting to substantially conform to or perform substantially in accordance with Pro Epic's specifications; or b) in the event that Pro Epic shall fail or be unable for any reason to correct any failure of Pro Epic Fusion Hosting to substantially conform to or perform substantially in accordance with Pro Epic's specifications, SUBSCRIBER may terminate this license and cease using Pro Epic Fusion Hosting, and Pro Epic will refund to User the full amount of any license fee paid to Pro Epic from the date any error is reported.
8. On-line Software Updates. Pro Epic may, when feasible, remotely update any version of Pro Epic Fusion Hosting, either with or without notice to SUBSCRIBERS or its USERS. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of Pro Epic Fusion Hosting. Any updated version of Pro Epic Fusion Hosting furnished to SUBSCRIBER by Pro Epic will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced. Pro Epic Fusion Hosting may send email communications and intersystem messages to SUBSCRIBERS explaining new features of the Pro Epic Fusion Hosting software and other news concerning Pro Epic
9. Pro Epic Fusion Hosting Help Desk. Throughout the term of this Agreement, Pro Epic will maintain e-mail support help desk to assist paying SUBSCRIBERS in their use of Pro Epic Fusion Hosting as posted on www.Pro-Epic.com.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, PRO EPIC FUSION HOSTING, AND INFORMATION AVAILABLE THROUGH PRO EPIC FUSION HOSTING ARE FURNISHED BY PRO EPIC AND ACCEPTED BY USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. PRO EPIC DOES NOT WARRANT THAT PRO EPIC FUSION HOSTING, OR INFORMATION OBTAINED THROUGH PRO EPIC FUSION HOSTING WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF PRO EPIC FUSION HOSTING OR PRO EPIC FUSION HOSTING WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE PRO EPIC FUSION HOSTING TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH PRO EPIC'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH PRO EPIC FUSION HOSTING, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF PRO EPIC FUSION HOSTING, AND INFORMATION OBTAINED THROUGH PRO EPIC FUSION HOSTING IS WITH SUBSCRIBER.
11. LIMITATION OF PRO EPIC LIABILITY. IN NO EVENT WILL PRO EPIC BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY PRO EPIC UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF PRO EPIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF PRO EPIC UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY PRO EPIC UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO PRO EPIC BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE PRO EPIC FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
12. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, Pro Epic Fusion Hosting without the express written approval of Pro Epic directors.
13. Term and Termination. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to Pro Epic within thirty (30) days following the date on which access to Pro Epic Fusion Hosting first becomes available to SUBSCRIBER. Pro Epic may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of Pro Epic Fusion Hosting without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation of paragraphs 4 or 7 above. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using Pro Epic Fusion Hosting.
14. Pro Epic Fusion Hosting Access and Service Fees. SUBSCRIBER will pay to Pro Epic implementation charges as posted on www.Pro-Epic.com or as agreed to from time to time. Throughout the term of this Agreement, SUBSCRIBER will pay Pro Epic a monthly fee determined in accordance with fee schedules established by Pro Epic for Pro Epic Fusion Hosting from time to time as posted at www.Pro-Epic.com. In addition, SUBSCRIBER will pay Pro Epic at the rates specified in such fee schedules for file storage in any given month beyond the amount included in the basic subscribed services. SUBSCRIBER will also pay or reimburse Pro Epic for all sales, use, excise, and other taxes and governmental charges including GST (other than income taxes) which Pro Epic is at any time required to pay or collect in connection with the furnishing of Pro Epic Fusion Hosting under this Agreement. SUBSCRIBER's credit card will be charged for the monthly fees and other charges to be paid under this Agreement. PLEASE NOTE credit card statements will indicate that charges are paid to Pro Epic. If SUBSCRIBER gives written notice of termination of this Agreement within thirty (30) days following the date on which access to Pro Epic Fusion Hosting first becomes available to SUBSCRIBER, Pro Epic will credit SUBSCRIBER'S account for all installation and basic monthly service fees incurred up to the date on which such notice of termination is received except for customized web site installation charges, which shall not be refunded. Payment terms of all charges by Pro Epic to SUBSCRIBER under this Agreement are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of two percent (1.5%) per month (18% per year), or the highest rate permitted by law, whichever is less, until fully paid.
15. Change in Monthly Fees. Pro Epic may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at least forty-five (45) days prior written notice thereof to paying SUBSCRIBER.
16. Financial Information. All financial information submitted via Pro Epic Fusion Hosting by SUBSCRIBER shall at no time be the responsibility of Pro Epic in any fashion whatsoever and may be shared with such financial institution as may be required.
17. Credit Card Information. Pro Epic does not store the credit card information of USERS UNLESS the SUBSCRIBER inputs credit card data into the auto billing feature within Pro Epic's recurring profiles module. SUBSCRIBERS, who enable auto billing and choose to store the credit card information of their USERS, are responsible for the security of that credit card information. When storing credit card information using the Pro Epic recurring profiles module SUBSCRIBERS acknowledge that they are aware of, and accept as satisfactory, Pro Epic's credit card protection procedures. To safeguard credit card information, Pro Epic encrypts all stored credit card numbers, uses a restrictive firewall to protect stored data and uses 128 bit SSL certificates to encrypt data during transfer between web browsers and the Pro Epic databases. When storing credit card information using the Pro Epic recurring profiles module, the responsibility for the security of any credit card information stored by Pro Epic on behalf of its SUBSCRIBERS is solely the responsibility of the Pro Epic SUBSCRIBER. Pro Epic is not responsible for the security of any credit data and SUBSCRIBERS indemnify and save harmless Pro Epic from any claim or demand resulting from the theft or loss of any credit card information. Credit card data is provided by the SUBSCRIBERS and their USERS of Pro Epic who are responsible for its protection.
18. Manner of Giving Notice. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. Notice under paragraph 14 may also be given by posting bulletins on www.Pro-Epic.com.
19. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
20. Severability and Choice of Law. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in Parker County, in the State of Texas, USA, and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of the State of Texas.
21. Assignment and Binding Effect. Pro Epic may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Pro Epic. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22. Entire Agreement. This Agreement sets forth the entire agreement and understanding between Pro Epic and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.
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