2. AVAILABILITY. Wire2Mobile guarantees Network and Power Infrastructure uptime to be 99%. This guarantee assures that all major routing devices within our network are reachable from the global internet 99% of the time.
Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades; or service malfunctions, and causes beyond Wire2Mobile’s control or which are not reasonably foreseeable by Wire2Mobile, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks, or network congestion or other failures. Wire2Mobile has no responsibility for downtime resulting from a user’s actions.
2.1 EXCLUSIONS. Many possible situations are completely beyond the control of Wire2Mobile, and therefore are not in the scope of this agreement. These situations include, but are not limited to:
2.2 DATA RECOVERY. All data is raid protected and it is expected that in the vast majority of hardware failures there will be no interruption or minimal interruption in recovery. In the case that data on the local disks are not recoverable, a re-create will be initiated and a restore from the most recent Wire2Mobile backup started immediately.
3. RESPONSIBILITIES OF CUSTOMER.
3.1 CUSTOMER COVENANT. During the term of this agreement, customer shall not knowingly distribute on their website(s) any User Content that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance, or regulation; (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (d) is obscene, pornographic, or indecent.
3.2 CONTENT. All services provided by Wire2Mobile are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives from any claims resulting from the subscriber’s use of Wire2Mobile’s services which damages the subscriber or any other party.
Examples of prohibited content or links include (but are not limited to):
Wire2Mobile will be the sole arbiter as to what constitutes a violation of this provision. Content that does not meet these standards will be removed without prior notice to the subscriber.
Housing of any of the following files is considered a violation of the terms of service:
3.3 COMMERCIAL ADVERTISING – EMAIL. All commercial email marketing companies must adhere to the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003. In addition such companies are prohibited the sending of bulk mail from “disposable domain names” with whois privacy protection. The following are also prohibited:
3.4 SERVER ABUSE. Any attempts to undermine or cause harm to a Wire2Mobile server or subscriber of Wire2Mobile is strictly prohibited including, but not limited to:
You will be held responsible for all actions performed by your account whether it is done by you or by others. All sub-networks of Wire2Mobile and all servers must adhere to the above policies.
4. BANDWIDTH MEASUREMENT AND OVERAGE FEES – INTERNET DATA TRANSFER. When purchasing a Wire2Mobile hosting package your outgoing bandwidth transfer will be used to calculate your bandwidth usage. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is currently free. If your actual data transfer usage exceeds the amount of the bandwidth included in your package you will be charged a bandwidth overage fee in addition to your regularly monthly fee. Currently the bandwidth overage fee is $0.10 per Gig used above what has been allocated per month according to your plan. Below is an overview of hosting specifications:
5. WIRE2MOBILE’S PRIVATE NETWORKING. Wire2Mobile’s private networking allows servers to communicate with each other over an internal, isolated private network. The bandwidth used on the private network is free and does not count against your regular bandwidth usage.
6. SERVER SUPPORT. Basic support and maintenance of virtual private servers is provided at the discretion of Wire2Mobile. In the case of erroneous instances or support issues extending beyond what we determine to be within the realm of reasonable assistance, support is priced as follows:
7. COURTESY SERVICES FOR CUSTOMERS. All services such as backup and Cpanel are provided for the courtesy of the subscriber. It is the sole responsibility of the subscriber to maintain the subscriber’s own backup of any data. Wire2Mobile is not responsible for lost data or for lost data due to third party software that is not maintained by programming staff for the Service. (Cpanel is not associated with Wire2Mobile)
8. HOSTING PERFORMANCE WARRANTIES. Wire2Mobile represents, warrants, and covenants that: (a) the Services shall be performed in a competent and professional manner by knowledgeable, trained, and qualified personnel, using sound, professional practices; (b) Wire2Mobile shall use its best efforts to prevent the introduction of computer viruses into the customer’s website and any User Content; and (c) there is no outstanding contract, commitment, or agreement to which Wire2Mobile is a party or legal impediment of any kind known to Wire2Mobile that conflicts with this agreement or that might limit, restrict, or impair the ability of Wire2Mobile to perform this agreement.
9. OWNERSHIP. CUSTOMERS DO NOT HAVE ANY OWNERSHIP RIGHTS in (1) the Service, (2) the Site, or (3) the specific mobile website(s) created for customers included in the Service. Wire2Mobile remains the owner of all right, title and interest in the Service and the Site, including all mobile websites, and related explanatory written and video materials.
9.1 EXCEPTION. CLIENT RETAINS AND OWNS any client files or content uploaded to mobile website including: logos, pdf documents, web copy and digital photos (unless licensed through another 3rd party).
11. LIMITED LIABILITY. THE LIABILITY OF WIRE2MOBILE AND ITS SUBSIDIARIES, AFFILIATES (INCLUDING AGENCY ORANGE DESIGN LLC), OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL WIRE2MOBILE OR ITS SUBSIDIARIES, AFFILIATES (INCLUDING AGENCY ORANGE DESIGN LLC), OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, THE SERVICE, OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY WIRE2MOBILE. THIS INCLUDES: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.
12. LIMITATION OF DAMAGES. Recovery of damages from Wire2Mobile may not exceed the amount of fees it has collected on the account.
14. PAYMENT. The term of this agreement is month-to-month. Unless you have made other arrangements, Wire2Mobile will charge your credit card as follows: (i) for recurring fees in advance, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, domain name registration, and support fees not included in your plan) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Wire2Mobile’s option. Unless otherwise agreed to, your billing cycle will be pre-paid monthly. Wire2Mobile may suspend all services if our charges to your credit card are rejected for any reason.
15. DISABLING OF ACCOUNTS. Accounts will be disabled if payment is not received within 14 days of due date. If your account has been disabled, you may be charged a reconnection fee of up to $50.00 in order to re-enable your account.
16. TERMINATION OF ACCOUNTS. If the account is not paid within 30 days of due date, the account will be terminated and all information within the account will be deleted.
17.1 BY CUSTOMER. You may terminate this agreement at any time and for any reason (including for no reason) by providing Wire2Mobile with at least thirty (30) days prior written notice of termination.
17.2 BY WIRE2MOBILE. You agree that, under certain circumstances and without prior notice, your Wire2Mobile mobile website, account and access to the Service may be immediately suspended or terminated by us. Cause for such action shall include, but not be limited to,
Termination of your Wire2Mobile account includes
Further, you agree that all terminations for cause shall be made in our sole discretion and that Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives shall not be liable to you or any third party for any termination of your account or access to the Service.
18. MEMBER ACCOUNT, PASSWORD AND SECURITY. You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (i) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
19. HOW TO REPORT A PROBLEM. The two primary ways to reach us are via phone and email. We are available from 9AM-5PM PST seven days a week.
20. LICENSE GRANT BY CUSTOMER. We do not claim ownership of content you submit to be subject to the Service, or content produced as a result of applying the Service. However, by submitting, posting, downloading, displaying, performing, transmitting, providing or otherwise distributing information or other content (“User Content”) to the Service, you grant Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, transmit, edit, translate, reformat, publicly perform and publicly display User Content on our server solely for the purposes of providing the Wire2Mobile Service to which such content was submitted. This license exists only for as long as you elect to continue to include such content on the Service and will terminate at the time you or we remove such content from the Service. You agree that Wire2Mobile may publish or otherwise disclose your name in connection with your User Content. You will not be compensated for any User Content.
We do not control or proofread User Content and, as such, do not guarantee the accuracy, integrity or quality of such content. Under no circumstances will Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the Service.
You acknowledge that Wire2Mobile may or may not pre-screen User Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such content.
21. PROHIBITED USES. Wire2Mobile imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Wire2Mobile in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
You agree not use the Site or the Service for any of the following prohibited activities: surveys, contests, pyramid schemes, chain letters, junk mail, spam, or unsolicited messages; upload of viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or other computer programming routines that are intended to damage or interfere with any system, data or personal information; creating a false identity for the purpose of misleading others; or engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Service, or which, in Wire2Mobile’s sole judgment, exposes Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives to any liability or detriment of any type. Under no circumstances will Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and/or representatives be liable in any way if you engage in any of these prohibited activities.
22. ACCOUNT ACCESS. We may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
23. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. We respect the intellectual property of others, and we ask our users to do the same. When using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, provide us, or otherwise distribute any information or content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit, or that is provided or transmitted using your account. The burden of proving that any content does not violate any laws or third party rights rests solely with you.
By submitting, posting, downloading, displaying, performing, transmitting, providing to us or otherwise distributing User Content to the Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content. You also agree to acquire any authorizations necessary for hypertext links to third party websites used on the Website or otherwise in conjunction with the Service.
24. COPYRIGHT INFRINGEMENT. Wire2Mobile has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Wire2Mobile has adopted a policy that provides for the immediate suspension and/or termination of any Wire2Mobile website or Service user who is found to have infringed on the rights of Wire2Mobile or of a third party, or otherwise violated any intellectual property laws or regulations. Wire2Mobile’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Wire2Mobile to delete, edit, or disable the material in question, you must provide Wire2Mobile with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Wire2Mobile to locate the material; (d) information reasonably sufficient to permit Wire2Mobile to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Wire2Mobile’s designated agent at:
Chris Jones, Wire2Mobile LLC, 812 Camelia, Suite B, Berkeley CA 94710, (510) 213-4099, email@example.com
29. WIRE2MOBILE’S PROPRIETARY RIGHTS. All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on the Site and Service are proprietary to us or to third parties. You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Your use of Service does not give you any rights or ownership interests in Wire2Mobile’s intellectual property or technology. You further acknowledge and agree that information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service, the Site, or the Software, in whole or in part.
32. CALIFORNIA USE ONLY. The Site is controlled and operated by Wire2Mobile from its offices in the State of California. Wire2Mobile makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Wire2Mobile’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
34. COPYRIGHT. All contents of the Site and Service are: Copyright ©2012 Wire2Mobile LLC, 812 Camelia, Suite B, Berkeley CA 94710. All rights reserved.
34.1 EXCEPTION. CLIENT RETAINS AND OWNS any client files or content uploaded to mobile website including: logos, pdf documents, web copy and digital photos (unless licensed through another 3rd party).
35. NO LICENSE. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Wire2Mobile or by any third party.