Terms of Service
In this Agreement, when we say “you,” “your,” and “Customer”, we mean the owner of the Media Temple (mt) Account and the person utilizing the Service. When we say “we,” “our,” “us,” “Provider,” “(mt)” and “Media Temple”, we mean GoDaddy Media Temple, Inc.
There may be other agreements that govern our relationship besides this one. This Agreement is maintained independently of any other agreement(s) between us and you, even if we are engaged in other service agreements or arrangements such as professional services, software development, or web development. The following policies, agreements and supplements are incorporated into this Agreement by reference: Affiliate Center Terms and Conditions, Managed Services Agreement and the Beta Participation Agreement. We may also offer or provide services from time to time through third parties that are governed by the terms and conditions of the respective service providers. Those terms and conditions are either referenced in this Agreement, below, or will be made available to you at the time of your purchase of the particular service. By using that service, you agree to be further bound by any rules that are applicable to Media Temple with respect to those service providers.
This Agreement may only be modified or supplemented by Media Temple, and we reserve our right to amend or supplement this Agreement at any time, at our discretion. When we change it or supplement it, we will do our best to provide you notice and point out what is different or new. We may also post rules and guidelines applicable to specific products or services to the various areas of our Website that describe them. You are responsible for reviewing this Agreement and our Website for any rules or guidelines applicable to specific areas of our Website and any amendments or supplements to this Agreement, change in our rates or change to the Service (“Changes”). If at any time, you do not agree to the terms of this Agreement or any of the policies on our Website, please discontinue use of the Service immediately and close your account(s). We’ll miss you, but we’ll understand. Your continued use of the Service after Media Temple’s posting of any Changes constitutes your acceptance and agreement with the Changes and all Changes shall supersede any previous agreement between you and Media Temple. Notice of any Changes shall be considered given and effective on the date that we update our Website with said Changes. You must periodically review this Agreement to ensure you know of any changes.
For the purposes of this Agreement, the following definitions apply and any undefined terms have the meaning ascribed to them in the context in which they are used in this Agreement:
- “Service” collectively refers to all of the products and services Media Temple offers and provides, including, but not limited to the installation, maintenance and repair of one or more shared or physical computers for use by customers. For more information on Service, please visit our Website.
- “Network Transfer” refers to the finite amount of Provider’s network transfer (bandwidth) capability for use by Customer using the Service requested by Customer.
- “Grid Performance Unit” or “(GPU)” refers to the measurement derived from the central processing unit (“CPU”) time required by every single hit/request made to a (gs) Grid-Service. This includes web server activity, programs, scripts and all associated parent and child processes across all nodes within the system. Specifically, 1000 GPUs is equivalent to running a continuous 10% load on one processor for a 30-day month. More information here.
- “Content” refers to any materials, including, but not limited to code, text, links, images, photographs, messages, graphics, music, sounds, video, files, data, software, applications and any other materials Customer may store on or about the Service or (mt) Account.
- “(mt) Account” refers to your account with us that contains the Service you subscribe to.
- “Account Owner” refers to the person identified in Media Temple’s records as the owner of the (mt) Account.
- “Account Contact” refers to any person the Account Owner has added to the (mt) Account for the purposes of accessing and managing the (mt) Account, or aspects of the (mt) Account.
- “Work Order” refers to the order for Premium Service ordered by Customer through our Website or telephone ordering system and is defined by the specified hours, with a minimum displayed for each you select.
- “Peripherals” refers to any service or product you may use in conjunction with or alongside the Service.
- “AccountCenter” refers to the Media Temple managed website located at ac.mediatemple.net. The AccountCenter is the online interface through which Customer may manage the (mt) Account and perform various administrative functions, including, but not limited to, adding services, closing services, making payments, updating the Payment Method or contact information, and accessing services.
- “Request to Close” refers to the formal request made by the Account Owner in the AccountCenter to close a Service or the (mt) Account.
- “Support Request” is a written communication exchanged by and between Media Temple and you and/or your Account Contact, through the AccountCenter. If Media Temple initiates the Support Request, a copy may be emailed to the email address on file; in addition, a copy may be stored in the AccountCenter for future reference.
- “Add-ons” refer to supplemental services Media Temple may provide such as additional disk space, SSL certificates, additional IP addresses, DV Snapshot Backups, and the like.
- “Support PIN” refers to the four-digit number you can generate within your AccountCenter that you use to verify your identity when contacting customer support over the phone. More information here.
(A) REGISTRATION & ACCOUNT OWNERSHIP
(1) REGISTRATION INFORMATION.
When you sign-up for a (mt) Account or add any Account Contact to the (mt) Account (together, “Register”), you will be required to provide data, which may include, but is not limited to, your, or any of your Account Contacts’, full legal name, company name, telephone number, email addresses, and mailing address (“Registration Data”). You represent that: (i) the Registration Data is accurate; (ii) you will keep the Registration Data current at all times; (iii) you and any Account Contacts are over the age of 18 or, if applicable, are the legal age in your country required to enter into contractual obligations, such as this Agreement; (iv) if you are Registering on behalf of a corporation or company, you are authorized to be the owner of all assets associated with the account; and (v) your use of the Service will not violate any applicable laws. You may update the Registration Data in the Account Center only. Unless pursuant to any section herein, (mt) will not modify the Registration Data. If we have reason to believe that any Registration Data is inaccurate, we may, in our sole discretion, suspend or close the (mt) Account, without notice, and refuse current or future service to you and/or your Account Contact(s).
When you Register, we recommend that you provide two valid email addresses where we can reach you. One of the email addresses should be independent of the Service and not hosted by (mt). You agree that we may communicate important information to you using the email address(es) you’ve provided.
(2) ACCOUNT OWNERSHIP
(a) The highest authority of a (mt) Account is the Account Owner. The Account Owner is appointed during the registration process, on the initial order form on our Website, or, if placing an order via the Customer Service or Sales Departments, by a (mt) sales agent. Once the Account Owner appointment has been made, it may not be changed unless by either the Account Owner via the Account Center or an authorized (mt) agent, pursuant to Section (A)(3) of this Agreement. We recommend that the person appointed as the Account Owner be someone that owns the domain name(s) hosted on the (mt) Account. To avoid a potential dispute over ownership, we do not recommend that an employee, contractor, or other transient person be the owner of the (mt) Account. Should a dispute arise, we may not be able to assist the third party with accessing the (mt) Account without a valid, applicable court order. If account ownership is disputed, (mt) may, in its sole discretion, suspend or close the (mt) Account without notice. The Account Owner assumes all liability and responsibilities for: (i) management of the (mt) Account, Service and all Content associated with the (mt) Account; (ii) all complaints served upon (mt) in reference to the Content; (iii) all activity associated with the (mt) Account; (iv) the actions of all Account Contacts; and (v) payment of all monies owing on the (mt) Account.
(b) The Account Owner and any Account Contacts must be living individuals, whose legal first and last name is provided to (mt). (mt) may require proof of: (i) the identity of the Account Owner and/or any Account Contact; and (ii) any of the Registration Data, including, but not limited to, proof of address and verification of email address. Use of business, organization, or fake names for the Account Owner or an Account Contact name is prohibited and constitutes a breach of this Agreement.
(c) Account Contacts have access to the (mt) Account, including, but not limited to: Billing information, payment history, billing statements, and Support Requests. Account Contacts also have access to the Service and may modify Account Center and Service controls (including passwords) or make support related inquiries on behalf of the (mt) Account. Some Account Contacts may add a Service to the (mt) Account at any time. However, only the Account Owner may close or reopen a (mt) Account or Service.
(3) ACCOUNT OWNERSHIP TRANSFERS
(a) Requests to transfer ownership of a (mt) Account fall under three classes: (i) Type A transfers, which are those account ownership transfers initiated by the Account Owner via the Account Center; (ii) Type B transfers, which are those account ownership transfer requests initiated by someone other than the Account Owner; or (iii) Type C transfers, which are those account ownership transfer requests initiated by the beneficiary, lawful heir, Power of Attorney, or Executor of a deceased Account Owner’s estate. (mt) may, in its sole discretion, deny any request to transfer ownership of a (mt) Account.
(i) Type A Transfers:
In the case of Type A account ownership transfer requests, the owner name fields are changed by the Account Owner via the Account Center. Once changed, all rights and obligations granted to the former Account Owner under this Agreement will immediately transfer to the new Account Owner. Transfer of ownership only affects ownership of the (mt) Account, and not any Peripherals.
(ii) Type B Transfers:
In the case of Type B account ownership transfer requests, if all of the requirements set out on the transfer form have been satisfied, we may make a good-faith attempt to reach the current Account Owner via telephone, email, or Support Request to allow him/her the opportunity to approve or deny the request. If the Account Owner expressly objects to the transfer request, we will be unable to assist the other party with accessing the (mt) Account without a valid, applicable court order. On the other hand, if we are unable to reach the current Account Owner, for whatever reason, or if we do not receive a timely response to any of the Communications we have sent concerning the request, we may proceed with the transfer of ownership as requested without further notice.
(iii) Type C Transfers:
In the case of Type C account ownership transfer requests, if all of the requirements set out on the transfer form are satisfied, we may, in our sole discretion, proceed with the transfer of ownership as requested.
(iv) Effects of Type B and C Transfers:
Once ownership of an account has been processed: (i) All rights and obligations granted to the former Account Owner under this Agreement will immediately cease and be transferred to the new Account Owner; (ii) (mt) will remove the former Account Owner’s Registration Data and replace it with the Registration Data provided by the new Account Owner on the transfer form; and (iii) (mt) may also remove the former Account Owner’s Payment Method. (mt) will not modify any other facet of the (mt) Account or the Service; the new Account Owner is solely responsible for doing so. Before any approved transfer of ownership can be completed, (mt) must receive full payment of any balance owing on the (mt) Account as of the approval date. An approved transfer of ownership only affects ownership and control of the (mt) Account, and not any Peripherals.
(1) CHANNELS OF SUPPORT
We offer a variety of channels through which you can reach us for support to help you utilize the Service. Currently, we have customer service agents available to assist you 24 hours a day, 7 days a week, 365 days a year. We may be reached through the following channels (“Channels of Support”): telephone, online chat, Support Request and Twitter. Response times may vary. Not all Channels of Support are available at all times. All inquiries are handled in the order in which they were received. Media Temple does not guarantee the availability or accessibility of all of the Channels of Support. We reserve the right, in our sole discretion, to change, replace or entirely cease offering support through any one or all of the Channels of Support, at any time, for any reason or no reason, and without prior notice.
Media Temple takes account security very seriously. This is why Media Temple cannot provide account-specific information or assistance to any persons other than the verified Account Owner and Account Contact(s). Account-specific information is considered any nonpublic information about the (mt) Account, which may include, but is not limited to, Account Owner name or contact information, billing or payment information, balance owed, length of service, or types of Service being used. We are unable to offer account-specific information or assistance via Twitter. Any person other than the Account Owner or an Account Contact that contacts us seeking account-specific information or assistance will be informed that they are not listed in our records and that we cannot provide the account-specific information or assistance being sought, regardless of any purported relationship such person may claim to have with the Account Owner or an Account Contact. Notwithstanding the foregoing, even if a person represents him/herself to be the Account Owner or an Account Contact, before we will provide any account-specific information or assistance to such person, he/she will be required to validate that he/she is the person he/she is representing him/herself to be, by providing a valid Support PIN of the person he/she is representing him/herself to be (“Authenticate”). If such person is unable to Authenticate, for whatever reason, we will be unable to provide any account-specific information or assistance. We can’t make exceptions to this policy, so please don’t ask. However, we are entitled to rely on the authentication information provided by individuals who contact us and successfully Authenticate into the (mt) Account.
(2) STATEMENT OF SUPPORT
(a) We’ll provide the hosting environment, but it’s up to you to maintain that hosting environment and the website you host in it. We’re proud to have a Statement of Support that is broader than most of our competitors, but we can’t help with everything. So, to be clear, Media Temple has no obligation, whatsoever, to provide support outside of that defined as supported, as set forth in this Agreement. Any support we provide that falls outside the scope of our support is provided completely as a courtesy, without obligation or liability. In no event should you rely upon or expect such assistance in the future. The Statement of Support provides a general overview of the scope and limitation of our support. As we add, change and remove products and services from our offerings, this list will change. For a detailed breakdown and copy of our most up-to-date Statement of Support, please click here.
(b) As a courtesy, we maintain a database (“the Community”) of articles and guides that contain information that may prove useful to you. We make no guarantee, whatsoever, as to the feasibility, accurateness, completeness or helpfulness of any of the information available in the Community. Your use of any of the information in the Community is completely at your own risk. It is recommended that you backup your Content before attempting to use any of the information in the Community. In no event shall Media Temple be held liable to you or any other person or party for any loss incurred in connection with use of the information in the Community. If you contribute to the Community, we own that contribution.
(2) ABUSE OF SUPPORT
We pride ourselves on being able to provide customer support through a variety of channels, but we love our employees too and we have to be able to provide support to all of our customers. So, we maintain a zero-tolerance policy with regards to abuse of our support system. Abuse of our support system may include, but is not limited to, engaging in any threatening, abusive, offensive, defaming, harmful, profane, harassing, or unreasonably excessive communication (whether written or oral) with Media Temple via the Channels of Support or elsewhere in the universe (you read that right, the universe). Any abuse of our support system, whether originating from the Account Owner or any Account Contact, shall constitute a breach of this Agreement and the (mt) Account will be subject to closure with immediate effect and without prior notice.
(C) ACCEPTABLE USE POLICY
(1) RESTRICTIONS ON USE
(a) You agree to use the Service for lawful purposes only. The laws of the State of California, and the United States of America apply to this Agreement and your use of the Service. In the interest of maintaining a functional, high-class, professional service, we have a few other conditions for users of our Service. While some of these conditions may seem harsh, please understand that they are necessary given the ever-evolving nature of the World Wide Web. Some of our competitors may not require their customers to comply with such conditions, and if any of our existing or potential customers are unwilling or unable to comply with these conditions, we get it, and we respectfully invite them to seek service elsewhere.
(b) The following represents a partial listing of activities that are prohibited when using the Service, any one of which has the potential to result in account or service suspension or closure without prior or further notice. Without limitation and in no particular order, the Service may NOT be used to host, display, post, propagate, upload, download, transmit, transfer, disseminate, distribute, reproduce, sell, link to nor facilitate access to:
- Any Content or website that contains material that, in our judgment, is intended to promote illegal activities, is unlawful, threatening, obscene, abusive, harassing, defamatory, slanderous, libelous, hateful or that violates any section of this Agreement;
- Any Content or website that contains private or confidential information, including, but not limited to, your or any other person’s or party’s credit card information, social security number or other national identity number, non-public telephone number, address or email address;
- Any Content or website that, in our judgment, is child pornography, child erotica, indecently depicts children, or, that poses any harm or potential harm to any child;
- Any Content or website that contains material that, in our judgment, is pornographic, sexually explicit, obscene or violent in nature;
- Any Content or website that promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Any Content or website that is designed or used to hack or break into remote systems;
- Any Content or website that is setup to function as an open http proxy;
- Any Content or website that is designed or used to commit or facilitate any “phishing” attack;
- Any Content or website that contains any malware, including, but not limited to, software viruses, trojan horses, worms, time bombs or any other computer codes, files or programs designed to interrupt, destroy, impair or limit the functionality of any computer software, hardware, telecommunications equipment or other device or equipment;
- Unsolicited or bulk email (SPAM), including, but not limited to, using the Service’s SMTP service or mail script to send out SPAM over our networks or other systems with a message referencing their website. SPAM is defined in paragraph (C)(3)(c). Our definition of SPAM is different than the CAN-SPAM Act, please read it;
- “Snowshoe spamming” (which, generally, is an abusive technique used to send SPAM from a variety of IP addresses in an effort to spread out the SPAM load);
- Any Content or website that is, in our judgment, designed to function as a farming bitcoin, bitorrenting, pirated software website or illegal or unlicensed software or ‘warez’ website;
- Any Content or website that is, in our judgment, designed to function as a “Tor relay” service or website;
- Any Content or website that contains URL shortener validation software;
- Any Content or website that contains or facilitate access to any material that is prohibited by Media Temple;
- Any Content or website that contains content that infringes on any right of any person or party, including, but not limited to a person’s or party’s right to privacy or intellectual property rights;
- Any Content or website that, in our judgment, is designed or used to exploit, extract or otherwise gather any content or information from any Media Temple database, including, but not limited to, incorporating data from any Media Temple database into any email or “white-pages” products or services, whether browser-based, based on proprietary client-site applications, web-based, or otherwise;
- Any Content or website that, in our judgment, is designed or used to reverse engineer, hack into, invade or otherwise gain unauthorized access into any of our systems, communications devices or resources, or any other systems, communications devices or resources (including, but not limited to security probing activities or other attempts to evaluate the security integrity of a network or host system without permission);
- Any Content or website that, in our judgment, is designed for, used to, operated as, or for purposes of topsites; IRC scripts/bots; IRCD (irc servers); proxy scripts/anonymizers; image hosting scripts (similar to Photobucket or Tinypic); AutoSurf/PTC/PTS/PPC sites; IP scanners; bruteforce programs/scripts/applications; mail bombers/spam scripts; banner-ad services (commercial banner ad rotation); file dump/Mirror scripts (similar to rapidshare); commercial audio streaming (more than one or two streams); escrow/bank debentures or bank debenture trading programs; high-yield interest programs (HYIP) or related sites; investment sites (e.g. FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme); sale of any controlled substance without prior proof of appropriate permits; prime banks programs; lottery/gambling sites; MUDs/RPGs/PBBGs; hacker focused sites/archives/programs; fraudulent sites (including, but not limited to sites listed at aa419.org & escrow-fraud.com); push button mail scripts; broadcast or streaming of live sporting events (e.g. UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc); “tell a friend scripts”; anonymous or bulk SMS gateways; websites advertised via SPAM (“Spamvertised”); organization, entities or websites listed in the ROKSO database; PayDay loan sites (including any site related to PayDay loans, PayDay loan affiliate programs, etc); or mailer pro.
(a) If you don’t keep your password safe, you might just get hacked. Don’t say we didn’t warn you. Notwithstanding any of the terms of this Agreement, you are required to and solely responsible for maintaining the confidentiality and security of the passwords used to access the (mt) Account, the Service and the Peripherals. Any and all activity that occur under your username and password will be considered done by you and you bear sole responsibility for that activity. Media Temple shall not be liable for any loss or damage arising from or otherwise related to your failure to maintain control over access to your password or username, the (mt) Account, the Service or the Peripherals, whether due to your own negligence or for any other reason. As a rule-of-thumb, it’s best that you change all of your passwords periodically and at any time you think that the (mt) Account, the Service, any of the Peripherals or any of your other usernames or passwords have become compromised.
(b) Passwords like “password1″and “love4god” are too common and are pretty easy to figure out. You are required to and solely responsible for employing industry standard best security practices, such as using secure passwords. If you use an unsecure password, the (mt) Account, the Service and/or the Peripherals are likely to be hacked or otherwise compromised, and you will be solely liable in any such case. Audits may be done to check for weak passwords. However, in no event should you rely on the performance of any possible audit by Media Temple. If an audit is performed, and it is determined that your password is weak, your (mt) Account may be suspended or you may be given time to update your password to a more secure password.
(c) We may be able to help you recover is your AccountCenter password. In the event that you forget your AccountCenter password, there are two methods you may use to recover it. You may either use the “Forgot your password?” link at the login page on the login page of our Website, or complete the Profile Update Form found here. If you use the “Forgot your password?” link, we will send a password reset link to the primary email address we have on file for you. Be advised, before we send the password reset link, you’ll be required to provide us with the primary domain on the (mt) Account and the primary email address we have on file for you. If you do not have access to the primary email address we have on file for you, or if you do not know or remember the primary email address, domain or both, your only recourse for recovering your password will be to submit the Profile Update Form along with a copy of your valid government-issued photo identification. If your submission is incomplete, illegible or if you provide documentation that is expired or which we have reasonable suspicion to believe is a forgery, we may, in our sole discretion, reject your request, require additional documentation, or block all access to the (mt) Account or the Service.
(3) ADDITIONAL USAGE RESTRICTIONS
(a) Any Content that, in our judgment, is questionable or that is found to breach any section of this Agreement, or any law to which Media Temple is subject, to any degree, may be removed from our servers (or otherwise disabled), in our sole discretion, with or without notice and without obligation. The (mt) Account may also be suspended or closed in any such case.
(b) You agree to use the Service in a manner that does not interfere with or otherwise disrupt service to other Media Temple customers nor any of our systems. Media Temple reserves the right to suspend or close the (mt) Account, without prior notice, if, in our judgment, such interference or disruption is determined by Media Temple to exist. Some examples of such interference or disruption include, but are not limited to, some of the items listed in Section (C)(1)(b) and any Customer action that has caused Media Temple mail servers or any of our IP ranges to be placed on any “black hole” list or any other mail filtering software systems used by companies on the internet.
(c) For our purposes, simply put, SPAM includes, but is not limited to, the sending of unsolicited bulk email, often in abundance. To be clear, we don’t allow spamming on any Service on our systems. To that end, please be advised that the following limits apply to the number of emails that can be sent through any (gs) Grid-Service: 50 emails per minute/500 emails per hour. An excess of these limits is a breach of this Agreement and the (mt) Account is subject to suspension or closure, without prior notice.
(d) You are not permitted to use the (gs) Grid-Service as a remote storage server only.
(e) Media Temple does not permit excessive hosting service striping (“excessive striping”). For our purposes, excessive striping describes the condition where a customer attempts to use two or more Service, stored with duplicate Content, in order to collect an excessive allocation of overall bandwidth, disk space, GPUs, or other resources for the purpose of avoiding overage fees on a single service plan. An excessive striping condition may also be achieved by closing Service before their resource limits are reached then opening a new Service with nearly identical Content to use its bundled resources. Content and resource striping is generally permitted only on load-balancer enabled products and products which feature consolidated bandwidth billing. Any other form of content striping will be considered excessive and may result in a service suspension or closure of the (mt) Account, without prior notice.
(f) You are not permitted to knowingly allow any other website or hosting server to link to Content stored on Media Temple’s systems. At least 75% of any Content stored on Media Temple’s systems must have associated HTML, PHP or similar files at the Service linking to the Content stored on that Service.
(g) Media Temple will remain the sole owner of all IP network addresses within Media Temple’s network. You are not permitted to modify any TCP/IP configuration that will conflict with, or otherwise disrupt network service, by using configurations not allocated to you by Media Temple. We will use our best efforts to maintain permanency of any allocated IP address, however Media Temple reserves the right to change your underlying IP network address for any reason (including, but not limited to, for upgrades, security provisioning, or other network migration service), or for no reason at all, without notice. Any request for allocation of additional IP address(es) may be subject to justification. Justification requirements are subject to change. We reserve the right to reject any request for an additional IP address(es) based on insufficient justification or current IP address utilization.
(h) If we detect repeated failed login attempts, we may, without obligation of any kind, ban network access from the source of those failed attempts, and you’ll have to contact us to fix it.
(i) MySQL Resource Utilization refers to the amount of Media Temple’s MySQL Server resources for use by application and MySQL code Customer is running inside any (gs) Grid-Service. The MySQL Server does not provide a facility to measure individual resource utilization in a shared resource environment. Depending on Customer utilization, Media Temple may, at its sole discretion, place Customer into a MySQL container. Current MySQL resource allocations and MySQL Container pricing is available here and here.
(j) Plesk Panel and cPanel®. Your use of Plesk and cPanel requires acceptance of Plesk’s End User License Agreement here, and cPanel’s End User License Agreement here, which are hereby incorporated by reference.
(k) Amazon Web Services Customer License Terms. Your use of the AWS services is subject to the AWS Customer License Terms, a separate agreement between you and Amazon Web Services, Inc., a current version of which is located here.
(l) Cloud Services Projects include only those services specified on the associated statement of work (“SOW”). Any change requests that exceed the Services set forth in any Cloud Services SOW will be assessed and charged separately.
(m) Customer must, within 30 days of any Cloud Services Project completion, notify Media Temple if there are any issues with the delivered project. Media Temple is not responsible for and will not provide assistance with any issue(s) that arise beyond 30 days of any project.
(n) Customer must ensure Media Temple has access to necessary computing platforms, documentation and personnel (i.e., end users and technical representatives).
(o) Within ten (10) business days of Customer’s termination of their Media Temple account, Media Temple will transfer ownership of Customer’s Amazon Web Services (“AWS”) account back to Customer, if applicable. Media Temple will remove all non-customer AWS Identity Access Management (IAM) accounts, groups, roles, and federation prior to transfer of account ownership. AWS root account credential transfer will occur via secure, encrypted data transfer.
(p) We reserve the right to either charge or refund all non-recurring fees as laid out in our proposal for any Cloud Services Project.
(1) GENERAL BILLING
(a) We offer three billing term options (each a “Billing Term”): Monthly prepaid, 1-year prepaid and multi-year prepaid. If you opt for annual billing terms, generally, we will bill you the base fee for the Service once per year. You may request to change the billing term for a hosting Service from annual to monthly (and vice versa) by sending us a Support Request. Your request must include: (i) the desired new Billing Term; (ii) the Service to be affected by the billing term change; (iii) the desired effective date of the change; and (iv) your acknowledgement that there may be a change in the renewal fees due for the hosting Service as a result of the change.
(b) If, in our judgment, your purchase constitutes a high risk transaction, we may require you to provide additional documentation to validate the purchase.
(c) All fees are due in advance of the applicable term. The day you purchase a Service serves as that Service’s official anniversary day, (“Billing Date”). As an example, if you purchased a Service on January 1, 2011, depending on the billing term you selected, your Billing Date would either occur on January 1st of each year or on the first day of each month. The Billing Date for a Service cannot be changed. Because a Service’s Billing Date is specific to that Service, it is possible for a single (mt) Account to have Service with different Billing Dates.
(d) All monies are payable to Media Temple in U.S. dollars (“USD”) only. In our sole discretion, we may reject or convert into USD any non-USD payment, using the exchange rate in effect at the time of the conversion used by our payment processor.
(e) Media Temple accepts the following methods of payment (each, a “Payment Method”): Visa, MasterCard, American Express, Discover Card, PayPal and wire transfer. The Payment Method you first specify will be set as the Payment Method for the (mt) Account unless you change it in the Account Center. We will not honor any limiting, modifying or conditional notation you make with your Payment Method.
(f) You are responsible for ensuring that the Payment Method on file is up-to-date at all times and that the (mt) Account balance is kept current. If the Payment Method for the (mt) Account is credit or debit card, Media Temple and/or our payment processor may store the credit or debit card in a database for future renewals. We may automatically attempt to collect payment from such Payment Method, without notice, when a balance comes due.
(g) If the Payment Method for the (mt) Account is wire transfer or PayPal, you must manually send payment to Media Temple prior to any payment becoming due. Due to the manual nature of wire transfers and PayPal, payment must be sent well in advance of the Billing Date to avoid an interruption or loss of Service. Media Temple is not liable to you or any third party as a result of any such disruption.
(h) If payment is not readily available on the Payment Method on file (i.e., our attempt to collect payment from the credit or debit card is declined by the financial institution), in our sole discretion, we may continue to attempt to obtain payment from your Payment Method without further notice. If, during our attempts, any of the Services in the (mt) Account lapses into a past due status as a result of our inability to collect payment from your Payment Method, the (mt) Account may be suspended or closed for nonpayment. In no event shall Media Temple be held liable for any action we may take against you (such as suspending or closing your (mt) Account and deleting your Content), as a result of our inability to collect payment from your Payment Method. Any Communications we may send you concerning our inability to collect payment from your Payment Method are sent as a courtesy only.
(i) The (mt) Account is considered past due if Media Temple does not receive payment within 10 days of the Billing Date of any Service. The (mt) Account may be suspended, without notice, if the (mt) Account remains past due beyond 10 days from the Billing Date. To reinstate the (mt) Account, full payment of any balance must be received by Media Temple. If full payment of the past due balance is not received within 10 days of any Billing Date, the (mt) Account may be closed for nonpayment, without further notice.
(j) Billing statements become available on a Service’s Billing Date. There are three ways to retrieve the (mt) Account’s billing statements: (i) in the Account Center, (ii) via email, or (iii) via postal mail. Media Temple may email a copy of the billing statement to at least the Account Owner. To disable or re-enable email delivery of your billing statements, login to the Account Center and navigate to the Balance and Statements page. To request that we deliver your billing statement via postal mail, please send us a Support Request.
(k) In the event a billing dispute arises, either brought by you or by Media Temple, the dispute must be given in writing to the other party within 30 days of the disputed transaction occurring.
(l) Should we receive a request to remove a Payment Method from the (mt) Account, from a person or party who is not the Account Owner or an Account Contact, upon receiving sufficient documentation confirming that the person making the request is the cardholder, we may, without prior notice, remove the Payment Method and refund some or all unauthorized charges collected from the Payment Method on behalf of the (mt) Account. Refunds issued in connection with such a request will result in the (mt) Account immediately becoming past due and the refunded amounts will be reassessed to the (mt) Account. To avoid an interruption in service, you must remit payment of the past due balance and any related fees within 72 hours of our notice to you. If you don’t, the (mt) Account will be suspended or closed for nonpayment.
UNLESS OTHERWISE NOTED, MEDIA TEMPLE SERVICES AUTOMATICALLY RENEW THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD, EXCEPT FOR DOMAIN NAMES WHICH WILL RENEW FOR THE ORIGINAL SERVICE PERIOD. FOR EXAMPLE, FOR PRODUCTS OTHER THAN DOMAINS, IF YOUR LAST SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL BE FOR ONE YEAR. THE DETAILS OF THE AUTOMATIC RENEWAL OPTION VARY FROM SERVICE TO SERVICE. THE ONLY WAY TO DISABLE THIS AUTO-RENEWAL IS TO CANCEL THE SERVICE IN THE ACCOUNT CENTER.
(2) CREDITS AND REFUNDS
(a) Setup fees, domain name registration and renewal fees, domain name redemption fees, handling fees, the cost of service add-ons, overage fees, fees for any of the Premium Service defined herein, and any Media Temple assessed penalty fees (e.g. chargeback fees or any other fee assessed to Media Temple in connection with collecting payment) are completely NON-REFUNDABLE. In addition, no refund will be issued for any (mt) Account closed pursuant to Section (F)(2)(a) of this Agreement.
(b) Credit issued to the (mt) Account (“in-store credit”) by Media Temple is not redeemable for cash and may not be transferred. Any amount of in-store credit that you do not use will remain on the (mt) Account for two years or until the Account is closed. The issuance of in-store credit is solely within Media Temple’s discretion.
(c) Media Temple may, in its sole discretion, issue the refund either (i) in the form of an in-store credit, (ii) via PayPal, or (iii) via check. Media Temple also has the right, but not the obligation, to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the payment provider, payment processor or individual issuing bank associated with your Payment Method.
(d) If we issue a refund to your bank account, PayPal account, or debit/credit card, it could take as much as a full billing cycle for the refund to show up in your account.
(e) Discount and coupon codes are applicable only to the Service to which they are validly applied. Discount and coupon codes are valid only towards the initial purchase and shall not affect the renewal or recurring price of any Service, unless a recurring discount is specifically referenced in the coupon or promotion and only to the extent set forth in that coupon or promotion. Discounts offered after you have purchased, or agreed to purchase the Service are not applicable. Upon any downgrade, upgrade or closure of the Service to which the discount or coupon code was applied, the discount offered in connection with said discount or coupon code is considered null and void. Discount and coupon codes have no cash value and may not be transferred or used towards later purchases, downgrades, upgrades or modifications to any Service. Discount or coupon code abuse is not permitted and may result in the suspension or closure of the (mt) Account or retroactive adjustment of related charges. Media Temple reserves the right to discontinue any discount code or promotion at any time, without notice.
(f) No credits or refunds will be issued for non-usage of the Service or cancellation of month-to-month Service after the Billing Date.
(g) A prorated credit may be issued for annually billed Service upon closure of the Service by you. Annually billed Service purchased with a two-month discount, will be issued a prorated credit on the basis of 10-months, not 12-months. That discount will be removed if the Service is closed before completion of the Term.
(h) If you cancel the (mt) Hosting services within the first 30 days of purchase (the “eligibility period”), in accordance with our Money-Back Guarantee, you will receive a cash refund. This is the only cash refund (mt) offers, and it’s only for the products listed in the Money-Back Guarantee. Accounts closed for breach of this Agreement are ineligible for refund of any fees, even if the account is closed during the eligibility period.
(a) You agree to pay all prices and fees due for Services purchased or obtained at this Website at the time you order the Services. We expressly reserve the right to change our fees and prices at any time. Further, we reserve the right to adjust the amount of resources given to plans at any time. In the event of any price, fee or allocated resource change, notice shall be posted online at this Website and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.
(b) You agree to pay, in full, the amount of any recurring fee(s) or non-recurring, one-time setup fee(s) listed in the Service description for each service or product prior to the Service provisioning, equipment acquisition or installation by Media Temple whenever such fee(s) are due. The Service description for each service or product we offer is located on this Website on the webpage for each such service or product.
(c) A $15.00 NON-REFUNDABLE handling fee will be assessed on each wire transfer payment. This fee is in addition to any fees that may be assessed by your financial institution.
(d) A $25.00 NON-REFUNDABLE handling fee will be assessed to the (mt) Account upon Media Temple’s approval of any account ownership transfer request. This fee is in addition to any outstanding balance on the (mt) Account. Such amount must be paid before we will complete processing of the transfer of account ownership.
(e) Overage fees are NON-REFUNDABLE and due immediately.
(f) You agree that Media Temple shall not be liable for costs or expenses you may incur, including, but not limited to, overdraft and insufficient funds fees you may incur from any financial institution or other third party as a result of our attempts to collect payment from your Payment Method. You agree to assume complete responsibility for any third party costs or expenses you may incur as a result of our billing actions.
(g) Should you submit an emergency restoration request, and we are successful in recovering some or all of the requested Content from our own backup storage, the then-applicable NON-REFUNDABLE restoration fee will be assessed and collected from your Payment Method. If we are unable to immediately collect this fee from your Payment Method, or if your Payment Method is not credit or debit card, we may withhold any recovered Content until such time as full payment of the restoration fee is received by us.
(h) The then-applicable Move a Site fee, per Move a Site order, will be assessed and collected from the Payment Method on file for the (mt) Account prior to us providing the Move a Site Service. Once we have initiated processing of any Move a Site order, such order may not be cancelled and any fees paid in connection with the order are NON-REFUNDABLE.
(i) In our sole discretion, we may consider expediting the review and processing of a Work Order. In such rare cases that we do, we will assess a NON-REFUNDABLE rush fee in addition to the total cost of the Work Order.
(j) All domain registration renewal fees are NON-REFUNDABLE. The domain registration’s renewal fee is due thirty (30) days prior to the domain registration’s expiration. For example, if the domain registration expires on 12/01/2013, you must pay the domain registration’s renewal fee on 11/01/2013 to avoid losing ownership of the domain.
(k) If Media Temple is the Registration Service Provider of record for a domain name that has expired, it may be possible for us to recover the expired domain name for you, if you act within the Redemption Grace Period. A NON-REFUNDABLE fee of $120.00 must be paid before we will attempt to recover any expired domain name registration.
(l) You are responsible for paying any fees incurred by Media Temple in connection with our efforts to collect payment from you. We will re-assess any related charges to the (mt) Account and suspend the (mt) Account until full payment of the outstanding balance has been received. We may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Method on file for the (mt) Account.
(m) Regardless of the reason why a credit or debit or PayPal payment is retracted by a financial institution, a $25.00 NON-REFUNDABLE chargeback fee will be assessed to the (mt) Account for each chargeback we receive. This fee is in addition to any monies owing on the (mt) Account, and any fees assessed by the financial institution. Upon receipt of any chargeback, we will immediately, re-assess the related charges and suspend the (mt) Account and all Service(s) until such time as you have fully complied with the instructions set forth in our notice to you regarding the chargeback. We may refuse to allow credit or debit, PayPal or automated payment from you in the future. Upon our receipt of any third chargeback, we will immediately, without notice, close the (mt) Account; we may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Methods on file for the (mt) Account.
(E) NOTICES AND COMMUNICATIONS
(1) METHOD OF COMMUNICATIONS
You consent to receive electronic communications (email) from Media Temple concerning your use of the Service and concerning Media Temple product and service offerings (“Communications”). The Communications may be those that Media Temple is required to send to you by law concerning the Services (“Required Communications”). The Communications may also be those that Media Temple sends to you for other reasons. Media Temple may provide these Communications to you by sending an email to the email address you provided in connection with the (mt) Account or by posting the Communications to our Website. You also consent to receive Communications by telephone or postal mail sent to any postal address or telephone number you provided in connection with the (mt) Account, though we are not obligated to use these mediums to send Communications to you. You may change the email, postal address or telephone number Media Temple has on file for the (mt) Account through the AccountCenter (for instructions, click here). You may, without payment of any additional fee, withdraw your consent to receive Required Communications via email by sending notice to the Customer Service Address that identifies your full name, account number, primary domain name, primary email address and a valid Support PIN or by sending a request to Media Temple at:
GoDaddy Media Temple Inc.
Attention: Customer Service
14455 North Hayden Road Suite 100
Scottsdale, AZ 85260.
However, if you withdraw such consent, understand that Media Temple reserves the right to close the (mt) Account. Any notice Customer wishes to send Media Temple must be in writing via either Support Request or to the Customer Service Address.
Media Temple is not responsible for and shall not be liable for any late, lost, misdirected, intercepted, unsuccessful or otherwise failed efforts to send any Communications or Required Communications to you or any other person or party.
(2) COMMON COURTESY
(a) To avoid interruption of the Service, and possible closure of the (mt) Account, you are required to act in accordance with the terms of any of the Communications or Required Communications we may send to you, within the time-frame specified in such communications. If we make three or more attempts to reach you concerning any matter that requires your attention or action, and we do not receive a response from you within 24 hours of any third attempt, we may suspend or close the (mt) Account without prior notice. Notwithstanding that, we may suspend or close the (mt) Account if you fail to respond to any Communications or Required Communications sent to you by our Abuse Department, within 48 hours of any such Communications.
(b) As a courtesy, we may store a copy of certain Communications and Required Communication inside the AccountCenter under the “Support Requests” area. In no event should you rely on Communications or Required Communication appearing there. You are responsible for checking Support Requests on a regular basis to ensure there are no issues that require your immediate attention or action.
(3) PROVISIONS SPECIFIC TO G SUITE USERS
Your use and ability to access your email and/or entire suite of G Suite is subject to Google’s Terms of Service, which are incorporated herein by reference. By using G Suite, you consent and agree that Google may communicate directly with you for the following purposes: (i) to conduct customer service and satisfaction surveys; (ii) to the extent required to provide options regarding continuity of the G Suite (including after expiration of this Agreement); and (iii) for purposes related to the provisioning of the G Suite into your account, including in relation to any updates or security incidents.
(F) TERM AND TERMINATION
(1) YOUR RIGHT TO CLOSE YOUR (MT) ACCOUNT
You can close your (mt) Account. As long as the (mt) Account is open, though, everything in this Agreement applies, and certain terms continue even after the (mt) Account is closed.
(a) This Agreement shall be effective as long as our records indicate the (mt) Account is open, regardless of whether or not the Service are being used by you or any other person or party. This Agreement and all Service on the (mt) Account will automatically renew and you will be charged for additional terms equal to the previous term until and unless the (mt) Account is closed by you or Media Temple in accordance with this Agreement. You may close the (mt) Account or any of the Service at any time by submitting a Request to Close through the AccountCenter. The AccountCenter is the only means through which you can submit a Request to Close the (mt) Account or a Service. For instructions on submitting a Request to Close, please see this guide. All fees due through the closure date are completely NON-REFUNDABLE. Terms set forth herein that govern the (mt) Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the (mt) Account.
(b) With the exception of closure by Media Temple pursuant to this Agreement, the Account Owner is the only person authorized to close the (mt) Account or any of the Service associated with it. Account Contacts or other third parties are not permitted to close the (mt) Account nor any of the Service associated with it.
(c) In some cases, the earliest available close date presented to you in the AccountCenter may not be soon enough for you. For example, if the earliest available close date is your next Billing Date, but you wish to close sooner than your next Billing Date, we can help you with that. If you would prefer to have your Service or (mt) Account closed sooner, you must simply choose the earliest available close date given in AccountCenter and submit the Request to Close. Following your submission, you will simply need to send us a Support Request asking us to disregard your chosen close date in favor of a more desirable close date. In order to be considered valid, your Support Request must also contain your unambiguous acknowledgement that you are aware that all Content associated with any closed Service or (mt) Account will be deleted upon closure and we will not have backups of the Content. We may refuse to process any request to expedite closure that does not explicitly and unambiguously include this acknowledgement. Requests are processed in the order in which received and may take anywhere from 24-48 business hours to process.
(2) OUR RIGHT TO CLOSE YOUR (MT) ACCOUNT
(a) Media Temple reserves the right, in its sole discretion, to close the (mt) Account, without prior notice, for any one or all of the following: (i) if you or any of your Account Contacts, whether intentional or unintentional, breaches any section of this Agreement, any supplemental rules and guidelines, any of the terms and conditions of the respective service providers, or any rights of Media Temple; (ii) if we receive notice that you or your company will be or is subject to insolvency proceedings; (iii) upon our receipt of any third party chargeback associated with any Payment Method tendered as payment on the (mt) Account; (iv) if we do not receive a written response from you within 48 hours of any notice sent to you by our Abuse Department; (v) if, in our judgment, your use of the Service has the potential to pose any harm to Media Temple, any of our affiliates, partners, service providers or customers; (vi) if the (mt) Account becomes past due and is not paid within twenty days of becoming past due; (vii) if a hacked script or otherwise compromised website is discovered on our systems at the Service in use by you; (viii) if an unusual spike in resource usage is detected by our systems resulting in an account far outstripping the allotted resources; (ix) if you fail to cure any suspension of the (mt) Account or any individual Service, to our satisfaction, and within the time frame we specify; or (x) if, in our judgment, we have received too many complaints about your Content. In the event of any such closure of the (mt) Account, you will not be eligible for a refund of any fees and you may be prohibited from reopening the (mt) Account, opening a new (mt) Account or accessing any existing (mt) Account. In other words, pay us on time and don’t be stupid or do anything that breaches or otherwise violates any section of this Agreement, and we shouldn’t have to close the (mt) Account. You agree that Media Temple shall not be liable, in any way, for any closure pursuant to this section of this Agreement.
(3) EFFECTS OF CLOSURE AND SUSPENSION
(a) Upon any closure of the (mt) Account: (i) this Agreement and all rights granted under this Agreement shall cease immediately (except those expressly surviving or which by their nature would survive); (ii) all access to the Service and (mt) Account will cease immediately; (iii) you will be billed for, and we may automatically attempt to collect from your Payment Method, any outstanding amount owed; and (iv) all Content will be deleted from our servers and backup systems and we may not have or keep backup of the Content. We recommend that you run very regular backups. As well, we also recommend that you ensure you have retrieved all Content and made all necessary backups before submitting any Request to Close the (mt) Account or any of the Service. You agree to hold Media Temple harmless from and against any and all claims, losses or damages arising from any closure of the (mt) Account. Any and all sections in this Agreement which impose obligations continuing in their nature shall survive closure or otherwise continue to remain in full force and effect even after account closure. You are not permitted to access the (mt) Account or any of the Service formerly associated with the (mt) Account following any closure.
(b) Upon any closure of an individual service: (i) all access to the Service shall cease immediately; (ii) you will be billed for, and we may automatically attempt to collect from your Payment Method, any outstanding amount owed for the service; and (iii) all Content will be deleted from our servers and backup systems and we may not have or keep backup of the Content. We recommend that you run very regular backups. As well, we also recommend that you ensure you have retrieved all Content and made all necessary backups before submitting any Request to Close a service. You agree to hold Media Temple harmless from and against any and all claims, losses or damages arising from any closure of any service. Any and all sections in this Agreement which impose obligations continuing in their nature shall survive closure or otherwise continue to remain in full force and effect even after termination of this Agreement. You are not permitted to access any closed service following any closure of the service.
(c) Upon any suspension of the (mt) Account, all Service associated with the (mt) Account will be suspended or otherwise made inaccessible until and unless all issues are addressed and resolved by you, to our satisfaction, and within the time frame we specify. During any suspension of the (mt) Account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade or modify any of the Service; (ii) request an emergency restoration; (iii) transfer any Service, including but not limited to domain name registrations; (iv) access any of the websites, email accounts or Content associated with the suspended Service or account. You agree to hold Media Temple harmless from and against any and all claims, losses or damages arising from any suspension of the (mt) Account or the individual Service.
(4) REOPENING A SERVICE OR ACCOUNT
(a) Unfortunately, once closed, most of the Service may not be reopened; you will need to place a new order and have new Service provisioned. The only service that may be reopened is an unexpired domain name registration, if the (mt) Account is open and in good standing. To reopen an unexpired domain name registration, simply send us a Support Request asking us to reopen the domain name registration.
(b) The Account Owner is the only person authorized to re-open the (mt) Account. To reopen the (mt) Account, the Account Owner must telephone our Billing Department (during our Billing Department’s normal business hours) and Authenticate. If the Account Owner is unable to Authenticate, he/she must complete the Profile Update Request form found here in order for us to proceed with the re-opening of the (mt) Account. Any unpaid or otherwise outstanding balance must be paid before we will complete any re-opening. Re-opening an account does not mean that we are willing or able to restore your Content.
(G) DOMAIN NAME REGISTRATION SERVICE
(1) GENERAL INFORMATION
(a) You may register through our Website any available .com, .org, .net, .info, .biz, .co or .me domain name (“Accepted TLDs”). Media Temple is able to accept transfers for Accepted TLDs only. Any other TLDs (“Non-Accepted TLDs”) are not permissible. You may host upon our systems any Accepted TLDs you own or maintain control of. Media Temple does not represent or warrant that it has the certifications or authorizations necessary to host Non-Accepted TLDs.
(b) You are responsible for carefully reviewing your order for any domain name before submitting the order on our Website. Once your order for the domain name is submitted, the order is NON-REFUNDABLE. Renewal fees are also NON-REFUNDABLE. New customers may receive a discounted rate for their first domain name registration when activating new Service. If the newly activated Service is later closed (for whatever reason), and you wish to retain the domain name registration only, you will be required to pay the full recurring price for that individual domain name registration.
(c) We offer domain name renewals (for domains registered prior to February 17, 2014) through Tucows, Inc. and domain name registrations through Wild West Domains, LLC.
We offer the service of domain name registration renewals via a third party provider, Tucows, Inc. and new domain name registrations through Wild West Domains, LLC (each a domain name “Registrar”). When you renew a domain name through our systems, you are agreeing to be bound by both this Agreement and the Tucows Registration Agreement (“Exhibit A”). Exhibit A may be viewed here. The Registrar of record for any domain name you registered prior to February 17, 2014 will be listed in the Registration Record as Tucows, Inc. When you register or transfer a domain name through or into our systems, you are agreeing to be bound by both this Agreement and the Wild West Domain Name Registration Agreement (“Exhibit B”). Exhibit B may be viewed here. The Registrar of record for any domain name you register February 17, 2014 or later will be listed in the Registration Record as Wild West Domains, LLC; Media Temple will be listed in the Registration Record as the Registration Service Provider. In no event may you or any other person or party remove or otherwise hide Media Temple. Tucows or Wild West Domains contact information from the domain name’s record.
(d) The Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) rules govern all domain name disputes. When you register or transfer a domain name into our systems, you agree to be bound by the terms of the Uniform Domain Name Dispute Resolution Policy (UDRP), which may be viewed here. It is our policy to adhere to any rule issued by ICANN. If we receive notice that a UDRP, World Intellectual Property Organization (WIPO) or US state or federal complaint has been filed against you in reference to your use of the domain name, you may not be permitted to make changes to the domain’s Registration Record until we are ordered to permit you to do so, or otherwise receive confirmation that the dispute has been resolved. You acknowledge that if your use of the domain name is challenged by a third party, you will submit, without prejudice, to any rule or order issued by ICANN or any administrative body, such as WIPO.
(e) If we receive a request from a person or party (“the requesting party”) claiming to be Registrant of a domain name associated with the (mt) Account, and if said person seeks to remove or otherwise disassociate the domain name registration or DNS zone file from the (mt) Account, upon receiving what we consider to be sufficient proof that the requesting party is the domain name’s Registrant, we will, with immediate effect and without prior notice, remove or otherwise disassociate the domain name registration and/or DNS zone file from the (mt) Account. We will promptly provide notice to you following any such action.
(2) DOMAIN TRANSFERS
(a) When you initiate the transfer of any domain name to Media Temple, you represent and warrant that you are listed as the Registrant or Administrative contact for the domain name in the WhoIs database. For instructions on transferring a domain name to Media Temple, please click here. You will be required to pay Media Temple the first year’s registration fee upon initiating the domain name transfer to Media Temple. Domain name transfers to Media Temple generally take five business days to complete, unless the request is denied by your current registrar. It is your responsibility to timely address any issue that may arise concerning the transfer of any domain name to Media Temple to complete the transfer. Once a domain name transfer to Media Temple is complete, and Media Temple becomes the new Registration Service Provider of record for the domain name, you will not be able to transfer the domain name to another registrar for at least sixty days, unless in accordance with a decision or rule issued to Media Temple by ICANN, the governing body for domain names. By transferring or attempting to transfer any domain name into Media Temple systems, you are reaffirming your unconditional acceptance of all of the terms of this Agreement.
(b) For instructions on transferring a domain name from Media Temple, please click here. The time frame for completing domain name transfers away from Media Temple to another registrar vary depending on a variety of factors. It is your responsibility to timely address any issue that may arise concerning the transfer of any domain name from Media Temple to complete the transfer. We reserve the right to deny outright any request to transfer a domain name from Media Temple received while the (mt) Account is past due or otherwise not in good standing.
(3) DOMAIN REGISTRATION MANAGEMENT
(a) When you register a domain name through our Website or transfer a domain name into our systems, by default, domain privacy will be disabled/off and the Account Owner’s Registration Data may be used to populate the Registrant, Administrative, Technical and Billing contact fields (the “Registration Record”) for the domain name. The default information we use for the Registration Record may not necessarily reflect the desired information and it is your sole responsibility to update the Registration Record whenever necessary. Your willful provision of inaccurate or unreliable information, your failure to keep the domain’s Registration Record up-to-date, or any failure to respond to inquiries by us addressed to the email address of the Registrant, Administrative, Billing or Technical contact shall constitute a material breach of this Agreement and be a basis for cancellation of the domain name. If you need to verify or change the domain’s Registration Record, log in to the AccountCenter and follow these steps. Media Temple is not responsible for lapsed registration due to outdated Registration Record data, payment failure or any other issues. Any reminder notices we may send you for domain name renewals are sent as a courtesy only. It is your responsibility to ensure your domain name registration is current. Media Temple is not responsible for your failure to renew a domain name or failure to remind you to renew a domain name.
(b) Domain Privacy
If you wish to privatize or otherwise keep your personal information from appearing in the Registration Record, you may do so at the time you place your order for or transfer the domain name into our systems; otherwise, you will need to login to the AccountCenter to enable domain privacy later. When domain privacy is enabled, Media Temple will use a third party’s contact information to populate the Registration Record. As with all DNS changes, changes in domain privacy must propagate. There may be a period when, even after enabling domain privacy, the previous Registration Record is still visible to the public. You must wait until the DNS completes propagation before your changes take effect. Remember, we have an obligation to provide your information should we be legally required to do so, regardless of whether or not you have enabled domain privacy. Media Temple Domain Privacy private registration is fulfilled by Wild West Domains, LLC, and its terms are described here.
(c) You are solely responsible for ensuring that all domain name registration fees are paid when due. If you fail to pay domain name registration fees when due, your domain name registration will expire and be suspended by Media Temple and you can and will lose ownership of the domain name if you do not take action to renew it. Once a domain name registration has expired, the domain name (including, but not limited to the website, email and other services associated with the domain name) will be completely inaccessible until and unless renewed or re-registered. Generally, when a domain name registration expires, it goes into a post-expiration grace period commonly known as a “Redemption Grace Period.” The Redemption Grace Period lasts for up to thirty days from the date of expiration, and during that time, the status of the domain name registration in the WhoIs database will likely be displayed as “Redemption Period” or “Pending Delete – Restorable.” During the Redemption Grace Period only, it is possible for the last known Registrant (as according to the Registrar or Registration Service Provider’s records) to re-register the domain name. If you wish to renew an expired domain name registration that is within the Redemption Grace Period and Media Temple is the Registration Service Provider of record for that domain name, you must contact us during the Redemption Grace Period, pay a NON-REFUNDABLE fee and complete any other necessary requirements indicated by Media Temple at the time of your request to complete the renewal. Please note that, generally, it may take 7-10 business days for the domain registration to be updated once it has been redeemed. Once the Redemption Grace Period lapses, the domain name will enter a 5-day “Pending Delete” phase, and during such time, no one (including Media Temple) will be able to renew, re-register, redeem or otherwise gain ownership of the domain name. At that point, there is nothing we can do to help you get your domain name back. Following the “Pending Delete” phase, the domain name will be deleted at the registry and released back into the public pool of available domain names.
(d) Upon any expiration of any domain name registration for which Media Temple is the Registration Service Provider of record, Media Temple may direct the domain name to an IP address designated by Media Temple, which may contain a parked, coming soon or other such page (“Temporary Page”) that may include advertisements, promotions, links and other content designated by a third party or Media Temple, including, but not limited to, content promoting the Service. 100% of all revenues generated, or other economic or noneconomic benefits received, from any such Temporary Page belong solely to Media Temple and a third party designated by Media Temple, if any. Media Temple reserves the right, in its sole and absolute discretion, to modify or disable the content and/or appearance of any Temporary Page at anytime, for any reason or no reason, and without notice.
(e) Any domain name for which Media Temple is the Registration Service Provider of record, and which does not resolve to an active website or otherwise contain an “a record,” may resolve to a Temporary Page that may include advertisements, promotions, links and other content designated by a third party or Media Temple, including, but not limited to, content promoting the Service. 100% of all revenues generated, or other economic or noneconomic benefits received, from any such Temporary Page belong solely to Media Temple and a third party designated by Media Temple, if any. Media Temple reserves the right, in its sole and absolute discretion, to modify or disable the content and/or appearance of any Temporary Page at anytime, for any reason or no reason, and without notice.
(H) PREMIUM SERVICES
(1) MOVE A SITE
(a) We offer, for a fee, a website migration service (“Move a Site”) which is currently available for most PHP and HTML powered websites that are migrated to, from or between Media Temple hosting Service. Each Move a Site order covers the migration of a single website with its single database (a “Web Application”) and is generally, though not always, managed by a dedicated specialist. The amount of time it takes for us to complete the migration is largely dependent on whether you’ve satisfied your obligations prior to the migration and how much content is being moved and where. Notwithstanding the foregoing, we are unable to make any guarantees regarding the availability, possibility or amount of time required to complete any Move a Site order.
(b) The Move a Site service includes only migration of the Web Application. Exclusions apply. Once Media Temple initiates any migration, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole and absolute discretion, to close any Move a Site order, at anytime, for any reason or no reason, without prior notice. Notwithstanding anything to the contrary, in the event we close any Move a Site order, in our sole discretion, we may refund all or a portion of the Move a Site fee. Once an Move a Site order has been closed, for whatever reason, it may not be reopened; a new Move a Site order will need to be placed if the desired service is requested again. Customer must, within fourteen days of any migration, notify Media Temple if there are any issues with the migration. Media Temple is not responsible for and will not provide assistance with any issues that arise beyond fourteen days of any migration.
(c) After we receive your Move a Site order, we will contact you via a Support Request (generally within two business days) to gather any specific information we’ll need from you to migrate your website (“our notice to you”). Some of the information we’ll need to migrate your website includes, but is not limited to, login information, information pertaining to the current settings on your website, etc. If we do not receive a response from you within seven days of our notice to you, we will not be able to proceed with your order, and your Move a Site order will be closed.
(d) Move a Site does NOT include assistance with nor migration of any of the things on the following list. Please note that this list is not exhaustive and there may be other things you want help with that we can’t do. Without limitation, you bear sole responsibility for addressing the migration and management of all of the following:
- Email accounts (including, but not limited to email data and content);
- SSL certificates;
- Design and formatting changes;
- Updates to the Web Application;
- DNS changes or modifications;
- Domain name registration updates (including, but not limited to unlocking the domain at the Registrar or disabling domain privacy);
- Security audits;
- Any Content that was created or added to Web Application after the time Media Temple began migration;
- Any Content not related to the Web Application.
1) For Move a Site migrations to a DV Developer, prior to us beginning the process of migration, you agree that you will perform all of the following tasks, as necessary for your specific setup:
- Setup LAMP; and
- Create a custom MySQL database for the CMS database, other than the root user; and
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Resolve any server-related issues that arise before, during or after migration, such as user permissions.
2) For Move a Site migrations to a DV Managed, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Install all root level customization that may be required for website functionality (ex. APC, memcache, etc.); and
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Confirm that the website is compatible with PHP 5.3.10 or higher; and
- Resolve any server-related issues that arise before, during or after installation, such as user permissions.
3) For Move a Site migrations to a (gs) Grid-Service, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Confirm that the website is compatible with PHP 5.3.10 or higher.
4) For Move a Site migrations between (gs) Grid-Services, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Make a backup of any and all email on the (gs) Grid-Service for the website being moved; and
- Re-create all email addresses for the website on the new server, including configuring new passwords and updating your email users; and
- Lower TTL on the domain being moved (if DNS is hosted externally) and notify us of an ideal time when we can move the zone file until you point DNS; and
- Understand that email will be removed from the (gs) Grid-Service the website is moving from.
(2) ADVANCED SUPPORT ON-DEMAND
(a) We offer, for a fee, tuning service that may include performance analysis, apache performance tuning, MySQL optimization and/or PHP module installation (“Advanced Support On-Demand”). Restrictions apply. Disclaimer of Warranties / Limitation of Liability apply. For more information on Advanced Support On-Demand, click here.
(b) The Advanced Support On-Demand service includes only those services specified on the Advanced Support On-Demand order. Exclusions apply. Once Media Temple initiates any tuning, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole and absolute discretion, to close any Advanced Support On-Demand order, at anytime, for any reason or no reason, without prior notice. Notwithstanding anything to the contrary, in the event we close any Advanced Support On-Demand order, in our sole and absolute discretion, we may refund all or a portion of the Advanced Support On-Demand fee. Once an Advanced Support On-Demand order has been closed, for whatever reason, it may not be reopened; a new Advanced Support On-Demand order will need to be placed if the desired service is requested again. Customer must, within fourteen days of any tuning service, notify Media Temple if there are any issues with the tuning. Media Temple is not responsible for and will not provide assistance with any issue(s) that arise beyond fourteen days of any tuning.
(3) ONE-TIME MALWARE REMOVAL
(b) You agree to allow Media Temple’s in-house security provider, Sucuri, access to your servers for both malware remediation and post-service verification. The One-Time Malware Removal service includes only those services specified on the order. Once Media Temple commences providing the One-Time Malware Removal service, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole discretion, to close any order, at any time, for any reason or no reason, without prior notice.
(4) SECURITY PACK
(a) Media Temple’s Security Pack is a monthly subscription service offering Proactive Security Monitoring and Alerting, including professional malware removals.
(b) Proactive Security Monitoring: MT’s in-house security provider, Sucuri, schedules automated server-side scans of 1, or up to 5 domains for vulnerabilities. Automated scans can be set up to run at 12h (default) or 24h intervals and scan for malware, spam, and defacements. Manual malware cleanups and removal can be requested via the Account Center or by calling a customer support agent.
(c) Alerting: Any malware incidents detected by scheduled scan initiates the malware cleanup process handled by the in-house security provider, Sucuri. If any malware, spam, or defacements are detected during a scan, an alert is generated based on your self-selected alert settings. You agree to allow MT’s in-house security provider, Sucuri access to your servers. If your site is hosted externally and outside of (mt) Media Temple, credentials must be supplied in order for our security team to provide the full service. Services are performed using either (S)FTP or (SSH) access. The (mt) Security service includes only those services specified on the (mt) Security order. We reserve the right, in our sole discretion, to close any (mt) Security order, at any time, for any reason or no reason, without prior notice.
(5) ADVANCED SUPPORT
(a) We offer, for a fee, a dedicated support add-on that may include, but is not limited to, active monitoring of the Service and access to a special telephone hotline for support (“Advanced Support”). As part of the active monitoring of the Service, the Account Owner will automatically be opted in to receive alerts about incidents affecting your Service. Account Owner will not be able to opt-out of receiving alerts. Only Account Owners or Account administrators may make changes to the notification settings. Media Temple reserves the right to modify the incidents that trigger alerts. Account Owner and other opted-in users may receive up to three (3) alerts per incident. Restrictions apply. Disclaimer of Warranties / Limitation of Liability apply. For more information on Advanced Support please click here.
(b) The Advanced Support service includes only those services specified on the Advanced Support order. Exclusions and restrictions apply including but not limited to a maximum of 3 migrations per month. Customer must, within fourteen days of any migration, notify Media Temple if there are any issues with the migration. Media Temple is not responsible for and will not provide assistance with any issues that arise beyond fourteen days of any migration. Once Media Temple commences providing the Advanced Support service, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole discretion, to close any Advanced Support order, at anytime, for any reason or no reason, without prior notice. Notwithstanding anything to the contrary, in the event we close any Advanced Support order, in our sole and absolute discretion, we may refund all or a portion of the Advanced Support fee. Once an Advanced Support order has been closed, for whatever reason, it may not be reopened; a new Advanced Support order will need to be placed if the desired service is requested again.
(6) ACCOUNT MANAGEMENT
(a) With your purchase of Account Management, you will have a dedicated technical account manager (“TAM”) to help you develop, manage and support your business. You and your TAM will mutually agree on a call schedule for 1-1 consulting services, which may include event management, troubleshooting support, collaboration with Media Temple product teams as needed and detailing the scope of Services. The scheduled calls may also include customized assignments or tasks to be completed by you and designed to track progress as part of the Services. We strive toward providing Services that meet your expectations. However, we do not guarantee that your expectations will be met if requests are unreasonable or unable to be completed within the scope of the Services. Our completion of the Services depends upon your participation. We are not responsible for additional fees, time, or expenses incurred because of delays caused by your lack of or untimely response, feedback or approval, including your failure to participate in scheduled 1-1 calls. Restrictions apply. Disclaimer of Warranties / Limitation of Liability apply. For more information on Account Management, please click here.
(b) The Account Management service includes only those services specified on the Account Management order. Exclusions apply. Once Media Temple commences providing the Account Management service, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole discretion, to close any Account Management order, terminate or change the nature of the Account Management service at any time, for any reason or no reason, without prior notice. Once an Account Management order has been closed, for whatever reason, it may not be reopened; a new Account Management order will need to be placed if the desired service is requested again.
(7) SSL CERTIFICATES
The SSL Certificates are powered by GoDaddy and are available for purchase as a stand-alone product or may be included for free with your purchase of other products. You acknowledge and agree that your use of your purchased SSL Certificate is subject to the GoDaddy’s Certificate Services Agreement (as applicable) is hereby incorporated by reference. Additionally, you consent for GoDaddy to receive and user your information in order to provide the Service and to uphold its responsibilities under this Agreement. Starting September 1, 2020 browsers will no longer trust SSLs with validity periods longer than 398 days. As such, if you purchase an SSL certificate that is longer than one (1), upon that anniversary you will be required to re-validate and re-install your certificate.
(8) HOSTING SERVICES
(a) DESCRIPTION OF SERVICES
- Shared Hosting.Shared Hosting plans place your site within one or more servers. Resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).
- Managed WordPress Hosting.Managed WordPress Hosting plans give you a streamlined and optimized experience to build and manage WordPress sites. We handle the basic hosting administrative tasks, including installing WordPress, automated daily backups, WordPress core updates and server-level caching.
(b) ACCOUNT TERMINATION; LIMITATIONS
- Migration of Servers.You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.2. Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted, and we will not be able to provide a copy of such content.
- Notice Regarding Licensed Images on Migration or Export (where available).Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Media Temple hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions. To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporated therein, and you acknowledge and agree that Media Temple does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).
- Storage Capacity.The total amount of usable storage capacity for your particular hosting service may differ from represented capacity, as there is required space for the operating system(s), system file(s), and other supporting file(s).
(c) YOUR OBLIGATIONS; REPRESENTATION AND WARRANTIES
- Justification.You acknowledge and agree that we shall have the right to seek justification in connection with your use of the hosting Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.
- Abusive Activities and Other Threats.You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or will damage the systems of, or cause a disruption of internet services to, Media Temple, our customers, or third-parties. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Service Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Service Agreement. You further acknowledge and agree that Media Temple reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Media Temple ‘s discretion for security purposes.
- Storage and Security.You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The hosting Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the hosting Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
- Website/Server Content.You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the hosting Services.
If access to a third-party hosting website is required in the provision of any Service, you represent and warrant that you are authorized to provide us with access to the third-party hosting account for the purposes of this Service Agreement. You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account. If you request that we install any Third Party Software (defined below) not provided as part of the hosting Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity.
(d) STORAGE AND OTHER PLAN LIMITS
- All Shared Hosting and Managed WordPress Hosting plans are subject to a limit of WordPress installs as specified by their respective plans, and 250,000 inodes per account for Linux® hosting accounts. Customers may purchase additional WordPress installs at the then current listed price. The plans are also limited to no more than 1,000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the number of inodes, files and folders, tables or gigabytes (as the case may be), or may be temporarily or permanently suspended, in Media Temple’s sole discretion. Managed WordPress Hosting plans are subject to the following limitations: no more than a) 25% of one CPU core; b) 512MB of RAM; c) 100 website connections; d) 100 active processes; e) 1 MB/s disk IO. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.
- Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.
- Shared Hosting and Managed WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer unlimited bandwidth and varying disk space depending on your plan. This means that we do not set a limit on the amount of bandwidth, but for Managed WordPress Hosting we may limit disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing. We offer unlimited Pageviews per domain, but if your number of Pageviews routinely approaches 1 million per month, we may review your account and require you to purchase additional resources in the interest of Media Temple resource optimization.
(e) SERVICE UPTIME GUARANTEE
We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
(f) THIRD PARTY SOFTWARE
“Third Party Software” means any software or application developed and owned by a third-party provider that we may contract with from time to time.
Operating Software. Each time you commission a server, we will provision the server with an appropriate operating system.
Media Temple reserves the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the hosting Services. You may not use the Third-Party Software outside of the hosting Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Hosting Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
(I) PROGRAM OFFERINGS
(1) BETA PROGRAM
From time to time, we may offer programs or otherwise make available services or products that are still in the early stages of development or otherwise not yet completely developed. By participating in any of our beta programs, you understand, acknowledge and agree that Media Temple makes no guarantee, whatsoever, as to the usability, feasibility or functionality of the services or products made available through the beta program. Your participation in the Beta Programs is completely at your own risk. Restrictions and limitations apply. Participation in the Beta Program is dually governed by this Agreement and the Beta Program Participation Agreement found here. In the event of any conflict between this Agreement and the Beta Program Participation Agreement, the Beta Program Participation Agreement shall govern.
(2) REFERRAL PROGRAM
The Media Temple referral program offers you a chance to get free hosting credit for referring customers to Media Temple services. See our Referral Program Rules for full details.
(3) AFFILIATE PROGRAM
The Media Temple Affiliate Program offers you a chance to get commission on the new customers you send to us. Restrictions and limitations apply. Participation in the Affiliate Program is dually governed by this Agreement and the Affiliate Terms and Conditions Agreement found here. In the event of any conflict between this Agreement and the Affiliate Terms and Conditions Agreement, the Affiliate Terms and Conditions Agreement shall govern.
(1) CONTENT MADE AVAILABLE FOR INCLUSION ON THE SERVICE
(a) We’re not responsible for any of the Content you, your Account Contacts or your users post on or via the Service; you are. You, not Media Temple, agree to assume all responsibility for and risk associated with all Content you and your party submit, transmit, email, upload, link to, display, disseminate, facilitate access to or otherwise make available through or for inclusion on the Service, including any reliance on the accuracy, completeness, truthfulness, appropriateness, legality or usefulness of such Content. You warrant and represent that you possesses all legal right to, or have obtained all necessary permissions to use any and all Content you make available, use in connection with or provide to Media Temple in connection with your use of the Service, and none of the Content you make available, use in connection with or provide to Media Temple in connection with your use of the Service infringes on any right of any person, firm, entity or party. You are solely responsible for protecting your assets as well as your rights to any of the intellectual property you provide to Media Temple, and Media Temple shall have no responsibility, whatsoever, with regard to it.
(b) You understand and agree that Media Temple is solely acting as a common carrier in its capacity of providing the Service hereunder, is not a publisher of any material or information and has no right to edit or censor the material at the Servers in use by Customer (unless pursuant to any local, state or federal law, or any section of this Agreement). Media Temple is not responsible nor pre-screens any of Customer’s website content. All material submitted for publication through the Service will be considered publicly accessible. Media Temple does endorse nor screen in advance material submitted to Media Temple for publication via the Service. Media Temple’s publication of material submitted by Customer does not create any express or implied approval by Media Temple of such material, nor does it indicate that such material complies with the terms of this Agreement.
(c) A Mail by Media Temple (“email”) account may be deactivated if it is inactive for 90 days. To keep your email account active, you must sign in to your email at least once every 90 days. Once an email account has been deactivated, incoming emails are bounced back to the sender, and user access to the mailbox will be disabled unless re-activated via the AccountCenter within 30 days. 30 days after email deactivation, any saved data including email, photos, and attachments will be permanently deleted. We will be unable to retrieve any content that may have been stored in the mailbox at that time. For more information in regard to our backup policy, please visit section (J)(1)(d) of the TOS.
(d) We do not provide backup services. WE REPEAT: WE DO NOT PROVIDE BACKUP SERVICES. We are not responsible for Content residing on or about the Service. In no event shall Media Temple be held liable for any loss of any Content. It is your sole responsibility to maintain appropriate backup of your Content. Notwithstanding the foregoing, on some occasions, and in certain circumstances, with absolutely no obligation and only as a courtesy, upon a Customer submitting an emergency restoration request, we may be able to restore some or all of your data that has been deleted as of a certain date and time when we have backed up data for our own purposes. Media Temple makes no guarantee that the data you need will be available. An emergency restoration is intended for data recovery of specific files and/or databases, and will NOT restore your server or website to a previous version. We may reject any emergency restoration request, at anytime, for any reason or no reason. We may reject any emergency restoration request received during any period when the (mt) Account is past due, suspended, closed or under investigation for any breach of any section of this Agreement. Backups are as-is and are not designed for litigation purposes.
(e) Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer’s facilities which are connected to Media Temple’s facilities, shall not result in the imposition of any liability upon Media Temple and Customer shall pay to Media Temple any reasonable costs, expenses, damages, fees or penalties incurred by Media Temple as a result thereof, including costs of local exchange company, labor and materials.
(f) If we receive three or more complaints (of any variety) concerning any Content hosted on or otherwise displayed via your Service, we reserve the right, in our sole discretion, to either close the (mt) Account or suspend the (mt) Account and require you to permanently cease hosting any specific website or Content on our systems. If we elect not to close the (mt) Account, directive as to remedy will be given in our Communications to you concerning the matter. If you do not adhere to the said directive, the (mt) Account may be closed without prior or further notice.
(2) DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)
(a) You may not use the Service in any manner that infringes upon any copyright. Such infringement may include, but is not limited to selling counterfeit goods, unauthorized copying of photographs, books, music, videos, or any other copyright protected work. It is our policy to promptly investigate compliant notices of alleged copyright infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the Content or website claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint’s substance or merit (or lack thereof). Media Temple reserves the right, in its sole discretion, to close any (mt) Account for which Media Temple receives three or more copyright infringement complaints, without prior notice and without a refund of any fees.
(b) Any person or party who wishes to file a claim of copyright infringement regarding Content hosted on or otherwise displayed via our systems may file notice via either email, fax or postal mail. Any person or party who requires assistance filing a claim of copyright infringement should consult or hire a lawyer or other legal professional for assistance. NOTE: Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including, but not limited to costs and attorney’s fees) incurred by the alleged infringer, the copyright holder or its licensee, or the service provider.
To email, send to email@example.com
To fax, send to +1 (310) 943-3559
To send via postal mail, send to:
(mt) GoDaddy Media Temple, Inc.
Attention: DMCA Compliance Officer
6060 Center Drive, 5th Floor
Los Angeles, CA 90045
(c) The law requires very specific language be present in any notice of alleged copyright infringement. As set forth in the DMCA, in order to be effective, a notice of copyright infringement must include all of the following:
- The physical or electronic signature of complaining party;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the content that is claimed to be infringing 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 us to locate the content (i.e. the specific URLs where the allegedly infringing activity is said to be taking place);
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(d) A counter notification is a legal request for Media Temple to re-enable or otherwise restore access to the material claimed to be the subject of infringing activity. The law requires very specific language be present in any counter notice. As set forth in the DMCA, in order to be effective, a counter notice must include all of the following:
- The physical or electronic signature of the alleged infringer or an agent authorized to act on behalf of the alleged infringer (such as an attorney);
- Identification of the material that was removed (or to which access was disabled) and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the alleged infringer (or his/her authorized agent) has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The alleged infringer’s (or his/her authorized agent’s) name, address, and telephone number, and a statement that the alleged infringer (or his/her authorized agent) consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer’s (or his/her authorized agent’s) address is outside of the United States, for any judicial district in which the service provider may be found, and that the alleged infringer (or his/her authorized agent) will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
(e) Upon receipt of an infringement counter notice that substantially complies with the counter notification requirements set forth in the DMCA, the DMCA requires us to provide the complaining party with a full copy of the counter notice provided to us by the alleged infringer or his/her authorized agent. The DMCA also requires us to permit the alleged infringer to restore access to the material claimed to be the subject of infringing activity, within no less than ten business days and no more than fourteen business days following our receipt of a compliant counter notice, unless we first receive notice that the complaining party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity. Be advised, regardless of whether or not the complaining party files an action seeking a court order to restrain the alleged infringer from engaging in infringing activity, the complaining party may still maintain the right to seek relief in a court of law. It is our policy to adhere to all orders of the court. Any court order issued in connection with a complaint that has been filed against the alleged infringer with which we are served will, with immediate effect, supersede any allowance we may have made permitting the alleged infringer to re-enable or otherwise restore the access to the material claimed to be the subject of infringing activity. A filing of a copyright infringement counter notice may result in litigation between and among the parties.
(3) TRADEMARK INFRINGEMENT CLAIMS
(a) You may not use the Service in any manner that infringes on the rights of any person or party. Such infringement may include, but is not limited to selling counterfeit goods, unauthorized copying of photographs, logos, designs or other lawfully protected works. It is our policy to promptly investigate compliant notices of alleged trademark infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the material claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint’s substance (or lack thereof). Presently, there is no counter notification process in place for trademark law. If you wish to object to the complaint filed against you, you will need to take matter up with the trademark owner in a court of law. In any case, you hold Media Temple completely harmless in all matters concerning our action with respect to any trademark infringement complaint. Media Temple reserves the right, in its sole discretion, to close any (mt) Account for which Media Temple receives three or more trademark infringement complaints, without prior notice and without a refund of any fees.
(b) Any person or party who wishes to file a claim of trademark infringement regarding Content hosted on or otherwise displayed via our systems may file notice via either email, fax or postal mail. Any person or party who requires assistance filing a claim of trademark infringement should consult or hire a lawyer or other legal professional for assistance. NOTE: Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including, but not limited to costs and attorney’s fees) incurred by the alleged infringer, the trademark owner or its licensee, or the service provider.
To email, send to firstname.lastname@example.org
To fax, send to +1 (310) 943-3559
To send via postal mail, send to:
(mt) GoDaddy Media Temple, Inc.
Attention: DMCA Compliance Officer
6060 Center Drive, 5th Floor
Los Angeles, CA 90045
(c) In order for us to investigate any claim of alleged trademark infringement, the notice of trademark infringement must include, substantially, all of the following:
- The trademark or service mark (“the mark”) claimed to be the subject of infringing activity;
- The registration number of the mark;
- The country of origin of the mark;
- The contact information of the owner of the mark, including name, address and telephone number;
- The goods or services associated with the mark;
- A complete description of the manner in which the complaining party believes the mark has been or is being infringed upon;
- The precise location of the allegedly infringing activity, specifically, the URLs;
- A statement, under penalty of perjury, that the complaining party has a good faith belief that use of the mark in the manner complained is not authorized by the owner of the mark, and use of the mark by in the manner complained infringes upon the rights of owner of the mark.
(4) EFFECTS OF OUR ACTIONS
(a) In some cases, when we remove or disable access to material claimed to be the subject of infringing activity or that, in our judgment, breaches any section of this Agreement, that action may cause some elements or areas of your website or the Service to malfunction or become unavailable. In no event shall Media Temple be held liable in any case and you are solely responsible for repairing or redressing such an issue.
(b) If we are unable to immediately access Content claimed to be the subject of infringing activity or that, in our judgment, breaches any section of this Agreement, or if our attempt to remove or disable access to said Content or website is unsuccessful we may immediately suspend the website or Service upon which the Content is displayed. In any such case, you will not be permitted to re-enable or otherwise restore access to the website or Service until you have complied with all of the terms set out in our notice to you concerning the issue.
(c) If any Content or website is disabled or removed pursuant to Media Temple’s obligations as a service provider under the DMCA, or pursuant to any section of this Agreement, re-enabling or otherwise restoring access to that Content or website is prohibited until and unless you are otherwise notified by Media Temple, via Support Request. In any event where the Content or website is re-enabled or otherwise restored (whether on the original (mt) Account or a different (mt) Account), absent Media Temple’s express authorization as set forth in this Agreement, the (mt) Account will be closed with immediate effect and without prior or further notice.
(d) You must immediately remove or disable access to any duplicative or derivative works of any Content or website Media Temple may disable pursuant to any section of this Agreement, whether or not such Content has the same title, name or label as the offending Content, is in any other format, form, size or is in or on any other directory or location on our systems. Your failure to do so could subject you to civil liability pursuant to U.S. federal law, and could also result in the suspension or closure of the (mt) Account.
(5) (MT) INTELLECTUAL PROPERTY
(a) The Media Temple Website, including all text, HTML, scripts, and images are copyright 1998-2019. All rights reserved. With the exception of the use of designated promotional materials for the purpose of encouraging third parties to use the Service made available for download on our affiliate (https://mediatemple.net/affiliate) and referral (www.mediatemple.net/referrals) webpages, any replication, modification, or copy of any part of this Website without the prior, written consent of Media Temple is prohibited. This notice applies to site visitors, customers, non-customers, affiliates, and resellers of Media Temple. Media Temple is a mark of GoDaddy Media Temple, Inc. “Media Temple”, “(mt)”, “Web Control Panel”, “Move a Domain”, “Move a Site”, “Advanced Support”, ” Advanced Support On-Demand”, “We host great ideas”, “Hosting Great Ideas”, “Virb” and the Media Temple and Virb graphic logo are all trademarks of Media Temple. All other trademarks are the property of their respective owners. Media Temple marks may only be used with the express advance written permission of Media Temple and, in any event, may never be used to (i) promote or otherwise market competitive products or services; or (ii) disparage Media Temple, its products or services, or in any manner which in our judgment may diminish or otherwise damage the goodwill we’ve established in our marks. Except as expressly provided, nothing within any of the Service shall be construed as conferring any license under any of Media Temple intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain content available through and used to operate Media Temple and the Service is protected by copyright, trademark, patent, or other proprietary rights of Media Temple and its affiliates, licensors and service providers.
(b) Except as expressly provided to the contrary, you agree not to modify, alter, remove or deface any of the trademarks, service marks, or other intellectual property made available by Media Temple in connection with the Service. You agree not to use any of the trademarks or service marks or other content accessible through Media Temple for any purpose other than the purpose for which such content is made available to customers by Media Temple. You may not use any of our marks as domain names.
(c) We’re constantly looking for new ways to improve the Service, our programs (e.g. Affiliate Program) and developing new products, services and features. Any information you send to Media Temple, including but not limited to any ideas, remarks, suggestions, or prototypes (“Information”), shall immediately become the exclusive property of Media Temple and we are entitled to use the Information without restriction or compensation to the person or party who sent us the Information. Under no circumstances shall any dissemination of Information to Media Temple be subject to any obligation of confidentiality or expectation of compensation. By sending us Information, you are waiving any and all rights you may have in the Information.
(d) You understand that Media Temple shall exclusively own all rights and interests in the Service, including, without limitation, all of the intellectual property rights therein. The Service is licensed, not sold under this Agreement. This Agreement grants you a temporary, non-exclusive, revocable, royalty-free license to use the Service during the period permitted by Media Temple, which is determined at our sole and absolute discretion, and which may be changed at any time, for any reason or no reason and with or without notice. You agree that you will keep the Service free of all security interests, liens, or other encumbrances. You may not sell, lease, license, loan or otherwise transfer or dispose of the Service and you will be responsible for any loss or damage to the Service.
(e) As a Media Temple customer, by accepting these Terms of Service, you agree that Media Temple can use your individual name and/or your company’s name and/or logo on our website, marketing materials, and other advertisements to indicate that you are or at one point were a Media Temple customer. If you are creating a website on behalf of a client or other third party, you represent and warrant that you have permission to grant this authority on behalf of that third party. This provision shall survive termination of this agreement or your customer relationship with Media Temple.
(6) RESELLING AND ONLINE STORES
(b) Sales Practices. In the conduct of your business, you shall safeguard and promote the reputation of Media Temple’s Service and business name, and shall refrain from all conduct which might be harmful to such reputation or to the marketing of your Service. You shall strictly refrain from all deceptive, misleading or unethical business practices. You shall comply with all applicable policies and procedures as well as applicable state and federal rules and regulations. Any violation by you of this paragraph shall constitute a material breach of this Agreement and in addition to all remedies available to us, you shall indemnify and hold harmless us in respect to any fee, fine, penalty, or liability imposed against us arising from any activities by you. The prices you charge for the Service you resell shall be solely determined by you. Likewise, you are solely responsible for collecting from Your Users all charges related to the Service, such as applicable taxes. We shall be able to rely and act based on the information you or Your Users provide to us.
(7) U.S. EXPORT LAWS
This Website, the Service, certain software, related documentation, and technical information made available through Media Temple (collectively, “Certain Content”) are subject to United States export laws, administrative acts, and regulations (collectively, “U.S. Export Laws”). Users of Certain Content are not permitted to export or re-export, or allow the export or re-export of, the Service in violation of any U.S. Export Laws. By using Certain Content, you represent and warrant that you are not located in, under the control of, or a national or resident of any embargoed country or country on the U.S. Department of Commerce’s Table of Denial Orders; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws. You agree not to export or re-export, or allow the export or re-export of Certain Content directly or indirectly to any countries that are subject to United States export restrictions.
Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
(K) PROTECTION OF YOUR DATA
Services available to You that may involve the submission, collection and/or use of personally identifying or identifiable information about you and your own customers (“Your Data”) in the course of your use of these Services. Your Data, for the purpose of this Section, excludes any Content. Our Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Services, is meant to provide you contractual assurance that we have robust mechanisms to ensure the transfer of Your Data, including transfers of Your Data from the EEA to the Services, meets with compliance under applicable data privacy laws.
For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of this Agreement at the time of purchase of Services will also be treated as your acknowledgement and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable).
(1) DISCLAIMER OF WARRANTIES / LIMITATION OF LIABILITY
(a) The Service is provided “as is” and our exposure to you is limited.
MEDIA TEMPLE SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NO DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY PROVIDER AND PROVIDER DOES NOT WARRANT THAT THE SERVICE OFFERED OR PROVIDED BY PROVIDER IS FREE OF BUGS, ERRORS, DEFECTS, VIRUSES OR DEFICIENCIES. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF PROVIDER’S SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSS OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND FEES PAID BY CUSTOMER TO PROVIDER FOR SERVICE, DURING THE PERIOD OF DISRUPTION OR MALFUNCTION. YOUR SOLE AND EXCLUSIVE REMEDY FOR DEFECTS IN THE SERVICE IS AS SET FORTH IN THIS SECTION OR IN THE SPECIFIC SERVICE LEVEL AGREEMENT, IF ANY, APPLICABLE TO THE SERVICE YOU ARE USING.
MEDIA TEMPLE’S SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MEDIA TEMPLE SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY OTHER PERSON MAY SUFFER. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL MEDIA TEMPLE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF MEDIA TEMPLE’S SERVICE) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF MEDIA TEMPLE’S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF MEDIA TEMPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES BUT IS NOT LIMITED TO ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF THE WEB HOSTING SERVICE, THE USE OF WEB HOSTING SERVICE, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO MEDIA TEMPLE’S WEB HOSTING SERVICE SYSTEM, THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND MEDIA TEMPLE, EVENTS BEYOND MEDIA TEMPLE’S REASONABLE CONTROL, THE NON-RECOGNITION OF THE MEDIA TEMPLE WEB HOSTING SERVERS, THE PROCESSING OF YOUR APPLICATION, THE PROCESSING OF ANY MODIFICATION TO THE RECORD ASSOCIATED WITH YOUR WEB HOSTING SERVICE, THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES HEREUNDER, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
IN NO EVENT SHALL MEDIA TEMPLE’S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO MEDIA TEMPLE FOR THE SERVICE DURING THE PRIOR TWELVE MONTHS, OR $500, WHICHEVER IS LESS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, MEDIA TEMPLE’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
(2) AVAILABILITY OF SERVICE
(a) You understand and agree that interruptions of Service may occur due to scheduled or emergency maintenance, updates and repair by Media Temple, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond Media Temple’s control, as defined by standard practices in the industry. From time-to-time, it may become necessary for Media Temple to stop, reboot, disable, reconfigure, re-route or otherwise interrupt the Service for indeterminate and unpredictable lengths of time. You agree that under no circumstances will Media Temple be held liable for any financial or other damages due to such interruptions. In no event shall Media Temple be liable to you or any other person or party for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.
(b) Media Temple reserves the right to reset the password used to access a Service and (mt) Account, if, in our judgment, the current password is unsecure or not current. We may also reset the password used to access a Service or (mt) Account in connection with any security audit required by our data centers or any other third party with whom we contract to provide the Service.
(c) In our sole discretion, we may limit or otherwise restrict the amount of bandwidth, disk space or storage space available to you. We may also limit or restrict the Service in adherence to any new governmental regulations or policies that may arise, either domestically or internationally.
(d) We reserve the right to refuse service. Notwithstanding the foregoing, we reserve the right to refuse access to the Service to anyone, at anytime, for any reason or no reason.
(e) From time to time, it may be necessary for us to update certain software, applications and/or the Service without prior notice. An example of a needed update is an update from one version of PHP to another. The updated version may not be compatible with your Content and/or website(s), and your Content and/or website(s) may cease to function as expected following the update. In most all cases, we are unable to rollback or otherwise reverse the update. You are solely responsible for adjusting your Content and website(s) to and ensuring compatibility with the updated version and you agree that Media Temple shall not be liable in any way for any loss or damage you or any other person or party may suffer as a result of our update to certain software, applications and/or the Service.
(a) Customer agrees to defend, indemnify and hold Media Temple and its affiliates, directors, officers, agents and employees harmless from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by Media Temple arising from or due to any claim, action, dispute or demand made by any third parties (including customers of Customer) that are related to or arising out of your use of the Service or from your placement or transmission of any materials or Content onto Media Temple’s servers. Such liabilities may include, but are not limited to: (a) false advertising claims against Customer (or customers of Customer), (b) liability claims for products or services sold by Customer (or Customer’s customers), (c) infringement or misappropriation of intellectual property rights, (d) violation of rights of publicity or privacy, defamation, libel, slander obscenity, or child pornography, (e) spamming or any other offensive or harassing or illegal conduct (including but not limited to any violation of our acceptable use policy, as set forth in this Agreement), or (f) any other damage arising from your equipment, your business, or your use of the Service.
(b) Media Temple agrees to indemnify, defend and hold harmless Customer and its affiliates, directors, officers, agents and employees (collectively, the “Customer Group”) from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by Customer Group arising from or due to any claim, action, dispute or demand (or any member thereof) to the extent arising from (i) any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of Media Temple or its employees, agents or subcontractors, or (ii) infringement of any U.S. patent, copyright or other proprietary right resulting from Customer’s use of intellectual property solely developed or wholly owned by Media Temple and used to provide the Service; provided, however, that, in addition to the foregoing indemnification, Media Temple’s sole and exclusive liability with respect to this Section (K)(3)(b), and Customer’s sole and exclusive remedy with respect to this Section (K)(3)(b), is limited to Media Temple making the Service non-infringing or arranging for Customer’s continued use of the Service by license or otherwise, but if either of the foregoing options are commercially impracticable for Media Temple, in Media Temple’s sole discretion, upon written notice to Customer, Media Temple may cancel the directly affected Service, refund to Customer any prepaid fees for such cancelled Service and, if applicable, adjust Customer’s ongoing monthly fees for the continuing Service to account for such cancelled Service. Notwithstanding anything to the contrary in this Section (K)(3)(b), Media Temple will have no indemnification obligation to Customer under this Section (K)(3)(b) for any infringement arising from (A) an unauthorized modification of the Service by Customer, (B) Customer’s combination of the Service with any intellectual property not developed or owned by Media Temple if the Service would have avoided the infringement but for such combination by Customer, or (C) Customer’s failure to install updates, patches or other similar items provided by Media Temple or the licensor of the intellectual property that is the subject of such a claim.
(4) FORCE MAJEURE
(a) Media Temple shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, wars; or lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.
(M) DISCONTINUED SERVICES
(1) END OF LIFE POLICY
Media Temple reserves the right to cease offering or providing any of the Services, or any third-party services that our products or services are based or relied upon, at any time, for any or no reason, and without prior notice. Although Media Temple makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, that product or service will no longer be supported by Media Temple, in any way, effective on the EOL date. Media Temple shall not be liable to you or any third party for any modification, suspension, or discontinuance of any of the products, and services, or any third-party services that our products or services are based or relied upon.
(2) NOTICE AND MIGRATION
In the event that any Service, or any third-party services that our products or services are based or relied upon, has reached or will reach EOL, it is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, Media Temple will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by Media Temple in its sole and absolute discretion. Media Temple may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
(3) NO LIABILITY
Media Temple will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.
(1) THIRD PARTY PROVIDERS
(a) Media Temple may subcontract the performance of certain services to third parties, and your use of the third party provided products and services shall be governed by any applicable license agreement, if any, with such third party and the third party’s terms and conditions. Media Temple makes no representations or warranties, and shall not be liable for, the quality, availability, timeliness, accuracy or completeness (or lack thereof) of the information, products or services provided by any third party provider.
(b) Media Temple is not the agent, trustee, representative or fiduciary of you or any third party provider in any transaction. Any transactions with third party providers shall be by and between the visitor and the third party provider. Any and all discounts and special offers of any third party may be subject to additional terms, restrictions and limitations.
(2) SYSTEM STATUS
(a) Without obligation, in an effort to be as transparent as possible, the status of our systems is made available on our Website here. Our system status page is provided for informational purposes only and only provides information regarding known system issues and maintenance which may affect the Service.
(b) Media Temple systems may be monitored for all lawful purposes, including, but not limited to: for system management, to facilitate protection against unauthorized access, to check on and verify survivability, operational security, system integrity and security procedures. During monitoring, information and Content may be examined, copied, recorded and used for authorized purposes. Your use of our systems constitutes your unconditional consent to such monitoring.
(3) COMPLIANCE WITH LAW
(a) You agree that you will use the Service offered by Media Temple in a manner that is consistent with all applicable U.S. local, state and federal laws and regulations, regardless of whether or not you are a citizen of the United States. Customers found to be using our systems for illegal activities, including but not limited to breaking into remote systems, phishing, credit card fraud, theft, will have their accounts closed with immediate effect, without prior or further notice, and without refund of any fees. You are solely responsible for determining what laws and regulations are applicable to your use of the Service.
(b) It is our policy to cooperate with law enforcement and administrative agencies, but we don’t just roll over and give them all of your info. Upon lawful request from a law enforcement or government administrative agency, Media Temple may, without notice to you or your consent, provide the information requested by such agency to that agency.
(a) If any federal, state or local governmental entity with taxing authority over the Service imposes a tax, duty or fee directly on the Service provided to you by Media Temple under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Media Temple may pass the direct amount of such tax on to you, and you shall promptly pay that tax.
Any party’s failure to insist on compliance or enforcement of any section of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that section or of any other section of this Agreement.
(6) RELATIONSHIP OF THE PARTIES
The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture, employee, employer or other relationship is intended . You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of Media Temple, any of Media Temple’s affiliates or its respective service providers. In addition to the foregoing:
- Nothing in this Agreement is intended nor shall be construed to create any obligation of exclusivity between you and Media Temple. Nothing in this Agreement is intended nor shall be construed as limiting or otherwise restricting Media Temple’s right, freedom and/or ability to enter into other, and different, relationships with other persons, firms, entities and parties, and we may, and will, enter into other, and different, relationships with other persons, firms, entities and parties. In addition, neither party undertakes, whether by this Agreement or otherwise, to perform any obligation of the other party, or to assume any responsibility for, without limitation, the other party’s actions, business or operations.
(a) This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in Los Angeles County, California and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against GoDaddy Media Temple, Inc. or any of its partners, employees, subsidiaries, officers, licensors or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
(b) By using the Service, you agree to submit to binding arbitration. In the event any dispute or claim arises against Media Temple, such dispute or claim shall be handled by an arbitrator of Media Temple’s choosing selected from the American Arbitration Association or National Arbitration Forum in the state of California. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to applicable rules. All decisions rendered by the arbitrator shall be final. The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, shall govern all arbitration under this Arbitration clause. Otherwise, the laws of the State of California apply to the dispute. The prevailing party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys’ fees and costs that the prevailing party incurred prior to commencing the proceeding.
(c) In no event will Media Temple mediate any dispute or controversy arising between you and any third party. Media Temple is unable to provide any legal advice or assistance. It is not our policy to adjudicate, validate or invalidate the substance, merit (or lack thereof) of any complaint we are served (such as complaints of copyright or trademark infringement, defamation, slander or libel) – such is left to the legal system and courts. Notwithstanding anything to the contrary, we will, without prior notice, remove or disable any Content or website any court of competent jurisdiction has ordered removed or otherwise disabled for whatever any reason.
(d) If you violate any of the terms of this Agreement, any supplemental rules and guidelines, any of the terms of the respective service providers, or any rights of Media Temple, we and any other harmed party reserve the right to pursue any and all legal and equitable remedies against you. If you are aware of any violations of this Agreement, please notify us at email@example.com
You may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without Media Temple’s prior written consent, which consent shall be at Media Temple’s sole discretion and without obligation; any such assignment or transfer shall be null and void. Media Temple is free to assign any of its rights or obligations hereunder, in whole or in part, to any third party as part of the sale of all or substantially all of its assets or stock or as part of a merger.
(9) HEADINGS OF NO FORCE OR EFFECT
The headings in this Agreement are just for fun and to help you grasp the concepts. We worked hard on them, but legally all of the titles, headings, subheadings and bolded explanatory phrases used in this Agreement have no effect or bearing on the meaning of any section herein at all. Sad, huh?
(10) ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes and cancels any other agreements, proposals, communications and understandings, whether written or oral, between Media Temple and you, other than as explained or incorporated by reference in the preamble of this Agreement.