Terms of Service
We will not modify this TOS arbitrarily. However, because the ways in which the internet is used, and abused, evolve over time, we reserve the right to modify it. If we do, we will provide you with written notice sent to the email address you have provided us, and post the notification on our home page. Unless a modification is necessary to respond to an emergency, we will give you thirty days prior notice of any modification. If a reasonable business person would believe that our modification materially alters the benefit of the bargain set out in this TOS, you may terminate this TOS prior to the expiration of the thirty day notice period. After that time, you will have been deemed to have accepted the changes.
1. The Services
1.1. The following provisions apply to all Services:
1.1.1. Descriptions of the features, characteristics and limitations of the products and services we offer are set out on our website. We agree to provide the Services to you, as they are described on our website, as of the Effective Date, during the Term. Should these characteristics change after the Effective Date, we are not obligated to modify your Services to reflect these changes. If we do so, and you agree to purchase them, the Fee may change. We may make changes to these Services if a supplier makes components unavailable, cost prohibitive, if a beta period ends, or at any time effective on the end of the term of a particular Service.
1.1.2. We may decline to accept a request for Service if we determine that we require the facilities for other needs. Should operational needs require us to restrict or allocate Services among customers because of a shortage of facilities or causes beyond our control, we may do so without breaching this TOS.
1.1.3. Unless expressly set out during the Ordering Process, the Services may be provided from any of our facilities. You will have no ownership right in the facilities, or in components of the Services. You will only have the right to use the Services.
1.1.4. The individuals or entity set out in our records is the only entity authorized to access the Services. It is your responsibility to secure passwords and other access methods used to access the Services. If you administer an account on behalf of another party, you warrant that you will administer that account in good faith, and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are adverse to your customer and which result in a claim against us.
1.1.5. If you resell the Service, or incorporate the Service into your own services, you are responsible for determining whether the Service will be appropriate for your customers (End Users) and for ensuring that they do not engage in any activity which would cause you to breach this TOS. Your End Users are not a third party beneficiary to this TOS, and you agree to indemnify us for any claims made against us by your End Users of any nature. Unless expressly set out during the Ordering Process, we have no obligation to provide support to End Users. If we cease providing the Service to you, for any reason, you are solely responsible for securing replacement services for your End Users.
1.1.6. We agree to use commercially reasonable efforts to provide Client with the Services according and subject to the terms of this TOS and all agreements incorporated by reference.
1.1.7. You must provide Acumantra with all information, access, and full good faith cooperation, including, if required, with your third party vendors, reasonably necessary to enable Acumantra to deliver the Services. We will rely on the information you provide to us. It is your obligation to keep this information up-to-date. We have no liability if communications are delayed, or not delivered, because of your failure to keep this information up-to-date. You agree that we may provide you with information that may negatively affect you by email. Please ensure that the email address you provide to us is configured in a way so that information from us is not rejected or marked as SPAM.
1.1.8. All software, hardware and some systems have a defined support lifetime (End of Life). Client may only use software, hardware and systems that are currently supported by their owners, including those that may have initially been provided by Acumantra in conjunction with the Services (for example, an operating system on a purchased server). When these items reach their End of Life, it is your responsibility to upgrade to a supported version. Acumantra has no responsibility to support End of Life items.
1.1.9. We will provide, at no cost to you, one primary account phone number by default, which will be subject to change at any time. Acumantra shall maintain and control ownership of all phone numbers that may be assigned to you by us and we reserve, in our sole discretion, the right to change or remove any and all phone numbers.
1.1.10. It is your obligation to back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.
1.2. The following provisions apply to On Call Central services:
1.2.1. You have the right to use the Services covered by this paragraph 1.2 to connect to our network, on a 24 x 7 basis, limited by this TOS. You will have no physical access to the equipment used to provide the Services.
1.2.2. The Services covered by this paragraph 1.2 are provided to you on a standard basis. They are not customized for your use. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs.
1.2.3. You will ensure that neither you nor any of your End Users make excessive or wasteful use of our network by agreeing to the following:
22.214.171.124. A “Reasonable Use” policy will apply to maintain stable data traffic. For the shared hosting Services, this means that if your use of the Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use so that you no longer exceed this standard. If you do not modify your use, we reserve the right to alter pricing, or terminate this TOS and assess an Early Termination Fee.
126.96.36.199. On termination or expiration of the Services, we shall be entitled immediately to block your access to the Services and to remove all data located on our equipment. It is your responsibility to download, or otherwise secure possession of, the data prior to the date of termination. If we terminate the Services without providing you with prior notice, we agree to preserve the data for a period of fourteen days, and allow you to download, or otherwise secure possession of, the data. If, after this period, you do not collect it, it may be deleted by us.
2.1. This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).
2.2. The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
2.3. Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination as set out in paragraph 4.
3.1. Fees for individual Services are set out on the page describing the Service (Fees). We will begin to charge you for those Fees on the Effective Date of that Service. Certain Fees are based on usage rate of the Services. These will be calculated as set out on the website describing the Fees, and added to the Fees. Other than usage based Fees, all Fees are billed in advance. Special promotions applied to Fees do not reoccur, nor will promotions offered to other customers necessarily be offered to you. Fees paid to third parties and set up fees are not refundable.
3.2. Fees do not include taxes. Any taxes imposed by a governmental entity on the Services will be added to the Fees unless you provide Acumantra with a valid tax exemption certificate. Acumantra will not add any taxes that are based on its corporate income.
3.3. The date Fees are due is set out on the webpage describing the particular Services (Due Date).
3.4. If you provide us with a credit card to pay the Fees, we will attempt to charge your card no sooner than five days prior to the Due Date. It is your obligation to ensure that your credit card may be charged. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason.
3.5. If you fail to pay Fees by the Due Date, a late fee will be assssed to the invoice due.
3.5.1. If an account holder submits a bank assisted dispute for services rendered, their account will be de-activated within 48 hours if the payment issue has not been recovered. A $50.00 charge back fee will be added to the amount disputed by the customer.
3.5.2. Any debt not paid 90 days after the due date will be forwarded to an outside collections agency for proper collection. At that time, the account holder will incur a $50.00 USD collection fee added to the balance previously due or the maximum amount allowed by law, and if it pursues collection efforts, you agree to pay all of our expenses, including, but not limited to, reasonable attorneys’ fees.
3.6. If you dispute any Fees, you agree to provide Acumantra with written notice and evidence supporting your arguments prior to the Due Date. Acumantra will review your dispute in good faith, and respond within thirty days of receiving notice of the dispute. If you disagree with our response, we both agree to negotiate in good faith for an additional thirty days. If after this period of time the dispute is not resolved, then we both may pursue the matter pursuant to the terms of paragraph 7. As consideration for providing you with a Fee dispute resolution provision, you agree to pay all Fees not in dispute and only use this procedure for bona fide, good faith, bill disputes.
3.7. If you terminate a Service in any manner other than as set out in this TOS, or fail to cure a material breach, then you agree to pay, within five days of giving notice of termination, all Fees that would have been payable to us had the early termination not occurred (Early Termination Fee). You agree to the Early Termination Fee as consideration to Acumantra for foregone business opportunities associated with limited network resources, and agree that this is a material inducement to Acumantra entering into this TOS .
3.8. If the Service Order includes a third party service, Acumantra cannot guarantee that the fee charged by this vendor will remain the same during the Term. If the vendor changes its fee, this increase will be passed on to you.
4. Termination and Suspension
4.1. Either party may terminate a particular Service by providing the other with thirty days written notice prior to the expiration of a Term. In order for you to effectively terminate this Agreement, you must contact us in writing at the address listed in this TOS document.
4.2. Acumantra may suspend the Services if you fail to pay the Fees by the Due Date, if providing them is prohibited by law or regulation, if you use End of Life software, hardware or systems on or in conjunction with the Services, or if you fail to cure a violation of our AUP or RAP within the amount of time set out in the notice, which the parties agree to be a material breach for which Acumantra’s original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.
5. Warranties, Limitation of Liability and Indemnification
5.1. We warrant that we own, or have been given a license by a third party to provide, the Services. OTHER THAN THE WARRANTIES SET OUT IN THIS TOS, WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES. EXCEPT AS SET OUT IN THIS TOS, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE. IN ADDITION, WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. EACH OF THESE DISCLAIMERS APPLIES UNLESS PROHIBITED BY LAW.
5.2. Acumantra’s liability, that of its contractors, and any third party vendors, to you arising out of this TOS is limited to direct damages up to the amount of Fees paid by you for the three months prior to the event giving rise to the liability, except as prohibited by law.
5.3. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR A CLAIM, NEITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHICH ARISE IN CONNECTION WITH THIS TOS AND/OR ANY AGREEMENTS INCORPORATED BY REFERENCE. THIS PARAGRAPH APPLIES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION DOES NOT APPLY TO A VIOLATION OF THE AUP, RAP OR A PARTY’S INDEMNIFICATION OBLIGATION.
6.2. The following items are outside the definition of Confidential Information: information that is, or is made, publicly available without a breach of this paragraph; was known by a party without a legal obligation to keep it confidential; is independently developed by a party without reference to the Confidential Information; is a comment or suggestion Client volunteers to improve Acumantra’s products or services.
6.3. Subject to this paragraph, the parties agree not to disclose the Confidential Information to third parties, other than as necessary to provide the Services, and then only for the purposes set out in this TOS. The parties agree to take reasonable steps to ensure the security and confidentiality of the Confidential Information, steps at least as protective as those used to protect their own Confidential Information.
6.4. Either party may disclose the other’s Confidential Information if required to comply with a court order or other government demand that has the force of law. However, the party subject to the court order agrees to give the other party notice within a reasonable period of time to allow the owner of the Confidential Information to protest it, unless notice is prohibited.
6.5. The obligations of this Section shall remain in effect for three years after termination of this agreement.
7. General Provisions
7.1. If Acumantra or you are unable to perform our respective obligations due to circumstances outside our reasonable control (Force Majeure Event), performance shall be excused for the period of time that these circumstances persist, contingent on our taking steps to remedy those circumstances. The following circumstances are outside the scope of a Force Majeure Event: lack or unavailability of funds. If Acumantra is unable to provide the Services for a period of thirty days or more, notwithstanding attempts to remedy the Force Majeure Event, you may terminate the affected Services without application of the Early Termination Charge.
7.2. From time-to-time we may receive warrants and subpoenas from law enforcement entities for information you provide to us (Law Enforcement Request). Unless the Law Enforcement Request prohibits, or requests, that it not be disclosed, we will inform you of our intent to disclose your information.
7.3. If you are involved in civil litigation we have no obligation to provide assistance to you to comply with civil litigation demands such as subpoenas. Should we be compelled to comply with a subpoena for the Services we provide to you, we will charge you $300 per hour, plus reasonable expenses, to comply.
7.4. This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of Acumantra and Client.
7.5. No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.
7.6. This TOS, and all contracts incorporated by reference, shall be binding on the parties and their successors and assigns. Either party may assign this TOS and all contracts incorporated by reference except in the following circumstances: to a competitor of the other; or to an entity having no assets and/or operations.
7.7. If any provision in this TOS, or a contract incorporated by reference, is found illegal or unenforceable, that provision shall be deemed restated in such a way as to be legal, enforceable and reflective of the parties intent and this TOS or other contract will remain in effect. Under no circumstances shall such a finding cause the contract to be void or unenforceable.
7.8. All notices shall be made in writing and effective upon: (i) the date of actual receipt; or (ii) five business days after recorded first class mailing. Notices to Acumantra shall be sent to the address listed in the “about us” or similar page on the Acumantra website to the attention of “General Counsel.” Notices to you shall be sent to the address set out in Acumantra’s customer record to the attention of “Legal Notices.”
7.10. No person or entity, other than you and us and our respective successors and assigns, shall be entitled to bring any action to enforce any provision of this TOS or contracts incorporated by reference, against either of us. For the purposes of this agreement, we shall both be considered independent contractors, and cannot make representations, claims or warranties on behalf of the other. Each party agrees to indemnify the other pursuant to paragraph 5.5 if a claim is brought that is within the scope of this paragraph.
7.11. You are is advised that, as may be applicable to it under California Civil Code Section 1789.3, to initiate a complaint about the Service, you may contact Acumantra at sidney (at) acumantra (dot) com, or as provided in the applicable Service Level Agreements. If you are dissatisfied with the manner in which Acumantra responds to a complaint regarding the Services, you may contact Acumantra at 2216 Dixie Highway, Suite 201, Ft. Mitchell, KY 41017.