This website hosting agreement is between PHANTM MARKETING, a(n) Oklahoma Limited Liability Company (the “Host”) and purchaser, (the ” User”). The Host is engaged in the business of providing hosting and related services. The User wants to retain the Host to perform the services provided for in this agreement. The parties therefore agree as follows:
1. ENGAGEMENT; SERVICES. The Host shall provide the services set forth in Exhibit A (the “Services”), as described in Exhibit B (” Service Level Agreement”).
2. PRICE; PAYMENT. (a) Price. The User shall pay the Host for the Services according to the terms set forth in Exhibit A. (b) Invoices. The Host shall send an invoice every month or charge subscription on file in amounts equal to the fees listed during checkout. Within 30 days of its receipt, the User shall pay each accurate and undisputed invoice. (c) Disputes. If the User disputes a particular invoice, the User shall pay the Host for the parts of the invoice that are accurate and not in dispute. If the Host cannot provide the availability level indicated in the Service Level Agreement, and the User complies with its credit request procedures, the User shall receive a credit based upon the credit percentages in Exhibit B. The Host shall include any credit due under that agreement on the next invoice.
3. TERM; TERMINATION. (a) Term. This agreement will become effective as described in section 20 and continue indefinitely until cancelled. Unless either party gives written notice to the other at least 30 days before the end of the Term, this agreement will renew automatically for the User’s set term at checkout (each a “Renewal Term”). This automatic extension will continue to apply at the end of each Renewal Term until the agreement is terminated. (b) Termination Procedures. This agreement may be terminated: (i) by either party, on provision of 30 days’ written notice before the end of a Term; (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party’s material breach is not cured within 30 days of receipt of written notice; (iii) by the User, immediately on written notice to the Host, if there is less than 90% uptime in any Services during any one-week period during any term (excluding scheduled maintenance or User actions); or (iv) by the User, immediately on written notice to the Host, if there is a breach of the Host’s security systems that results in the actual or potential unauthorized disclosure of the User’s Content (as defined below.) (c) Effects of Termination. After the termination of this agreement for any reason: (i) the Host shall export and return any content then in its possession to the User at the User’s expense, and the Host shall delete that content from the Host’s servers and data storage devices, unless the User notifies the host in writing no more than 28 days after the termination of this agreement, of its desire to maintain the content on the Host’s equipment. If the Host maintains this content, the Host shall make the content reasonably available to the User and the User shall pay the Host’s customary rates for these services and reimburse Host for the cost of making the content available; and (ii) the User shall promptly pay the Host according to the terms agreed upon at that time for Services rendered before the effective date of the termination.
4. CUSTOMER SERVICE. The Host shall consult with the User via telephone or electronic mail about how to use of the system on the terms set forth in the Service Level Agreement, but will not assist with any services not maintained or controlled by the Host as part of this Agreement. Third-party applications, mail-enabled printers/scanners, web services, and custom transport rules may be supported but will be scoped and billed separately.
5. SECURITY; BACK-UP. (a) Security. The Host shall locate all content on secure servers with limited access and required access authentication. The Host shall handle all content in accordance with industry best practices and the terms of this agreement. (b) Back-Up. If the User requests, the Host shall restore content to the User using the Host’s data back-ups. The Host shall maintain a copy of the past 30 days of all content. The Host may provide backup support and data restoration beyond the above referenced period for a data recovery fee as outlined in Exhibit A.
6. CONTENT. (a) Content. The User represents that it is the owner or valid licensee of all data or content it will upload in connection with the Services (collectively, the “Content”) and that it has secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Content. (b) The Host may use the intellectual property of the User to do the following, to the extent necessary to perform the Services: (i) digitize, convert, install, upload, select, order, arrange, compile and synchronize, use, reproduce, store, process, retrieve, transmit, and hyperlink the Content; and (ii) make archival or back-up copies of the Content.
7. CONFIDENTIAL INFORMATION. (a) Definition. “Confidential Information” means this agreement and all nonpublic information of the User, in whatever form, pertaining to the business of the User, including information relating to the User’s finances, customer records, and information, and all associated documentation and materials that the User designates as being confidential when disclosing it to the Host or that, under the circumstances of disclosure, ought to be treated as confidential by the Host. Confidential Information also includes any information relating to the User’s parent, subsidiaries, and affiliates. Confidential Information does not include information or data that is: (i) known to the Host before its disclosure by the User without an obligation of confidentiality under another agreement; (ii) independently developed by the Host without use of any Confidential Information; (iii) in the public domain when the Host seeks to disclose or make use of it, other than as a result of disclosure by the Host; or (iv) received by the Host from a third party with a legal or contractual right to disclose that information or data. (b) Disclosure. The Host shall not use or disclose the Confidential Information of the User except in connection with the exercise of its rights or the performance of its obligations under this agreement. The Host shall not disclose Confidential Information of the User to any person other than its employees, agents, or independent contractors who have a need to know it in connection with this agreement, and who are under obligations of confidentiality substantially similar to this section. The Host shall protect the confidentiality of the Confidential Information of the User in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in any case with reasonable care. All Confidential Information made available under this agreement, including copies, shall be returned or destroyed by the Host, and certified as having been returned or destroyed, promptly after the termination of this agreement. (c) Exceptions. The Host will not be in violation of this section if it discloses Confidential Information that is required to be disclosed because of a valid order by a court or other governmental body or by applicable law or by the rules of any nationally recognized stock exchange. However, under these circumstances, the Host shall notify the User in writing of that disclosure to permit the User to seek confidential treatment of that information.
8. NATURE OF RELATIONSHIP. The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party’s behalf, and neither party may take any action that creates the appearance of such authority.
9. INDEMNIFICATION. (a) Of User by Host. At all times after the effective date of this agreement, the Host shall indemnify the User against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a “Loss”) or any attorney’s or other professional’s fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a “Litigation Expense”) arising out of: (i) the Host’s gross negligence or willful misconduct arising from the Host’s carrying out of its obligations under this agreement; or (ii) the Host’s breach of any of its obligations or representations under this agreement. (b) Of Host by User. The User shall at all times indemnify the Host against a Loss or Litigation Expense caused by any breach of any of the representations or agreements made by the User under this agreement.
10. ACCEPTABLE USE.
User agrees that they and their End users will use the Services in full compliance with the Phantm Marketing Terms of Service (TOS).
By using any service provided by Phantm Marketing User agrees that:
User will not violate any applicable local, state, national or international law, including, but not limited to, regulations, ordinances, rules or any requirements of any applicable national or local authorities/regulator;
User will not transmit any unsolicited commercial or bulk email. User will not engage in any spamming or Mail Bombing activities;
All your outgoing email messages containing advertising will include an automated opt out;
User will not make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum;
User will not make, attempt or allow any unauthorized access to SiteGround and/or third-party website(s), server(s), or hosting accounts and/or services;
User will not allow any remote code execution of malicious software;
User will not cause denial of service attacks, port scans or other endangering and invasive procedures against SiteGround servers and facilities or the servers and facilities of other network hosts or Internet users;
User will not forge the signature or other identifying mark or code of any other person or engage in any activity (including “spoofing”) to attempt to deceive other persons regarding the true identity of the User (excluding the use of anonymous remailers or Internet nicknames);
User will not display, store, distribute or otherwise make available any content or material that you are not authorized to, whether because prohibited by law, agreement or other reason. This includes but is not limited to copyrighted music, video, photos, designs, files, copyrighted software, personally identifiable or protected confidential information, trade secrets, etc.;
User will not display, store, distribute or otherwise make available any “protected health information” as defined under Health Insurance Portability and Accountability Act (“HIPAA”);
User may host websites related to high-risk activities where the interruption or malfunction of the Services could lead to serious consequences, including but not limited to personal injury, death, environmental damage, etc only after receipt of our explicit consent. For such websites, you must receive confirmation from us that you can use the Services before submitting your Order. Examples of high risk activities include but are not limited to nuclear facilities, air traffic control, life and health support, etc.
User will not impersonate any person or entity;
User will not harm or seek to harm minors in any way;
User will not host or operate an audio and/or video streaming service;
User will not host websites that make use of cryptopools/contain mining scripts, promote cryptocurrency money-making schemes, are crypto exchange and crypto airdrop sites;
User will not host any website, content, links or advertisements of websites that:
infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any party;
profess hatred for particular social, ethnical, religious or other group;
contain viruses, Trojan horses, worms, time bombs, ransomware, spyware, adware, scareware, corrupted files, or any other malicious software or programs that may interrupt, limit the functionality or destroy any software, hardware or equipment;
contain Illegal or Hacking/Phreaking Software (Warez);
contain any software that is copyrighted and not freely available for distribution without cost. This includes, but is not limited to ROMs, ROM Emulators and Mpeg Layer 3 files (MP3);
contain any kind of proxy server or other traffic relaying programs;
promote Money Making Schemes, Multi-level Marketing or similar activities;
contain Torrent trackers, Torrent Portals or similar software;
are used to operate and contain peer-to-peer network systems and file sharing systems;
are with adult content, pornographic, obscene, unlawfully harassing, or connected with child abuse or sex-related merchandising;
contain personal data, private information, images, photos, videos and any other identifying information or material of any third party, including children without their consent (or a parent’s consent in the case of a minor);
advertise, encourage or give any kind of support to the use and/or sale of drugs and any related substances without permission by the government or other authority;
contain any data, material that is unlawful, abusive, threatening, harassing, or defamatory;
contain fake news, misleading, untruthful or inaccurate information;
promote, encourage or give any kind of support to violence and terrorism.
Examples of unacceptable content, data, materials, websites on all SiteGround servers include but are not limited to:
IRC Bots, Proxy Scripts, Warez, image, filedump, mirror, or banner-ad services (similar to rapidshare, photobucket, or commercial banner ad rotation), topsites, commercial audio streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, Investment sites, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs,, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts. Forum sites and or any other websites that distribute or link to warez content are strictly prohibited as well.
Any material that in our reasonable opinion is either obscene or threatening is strictly prohibited and will be removed from our servers.
By using our Services you also agree not to engage in or to instigate actions that cause harm to SiteGround, other SiteGround customers or any third party. Such actions include, but are not limited to, actions resulting in blacklisting any SiteGround IPs by any online spam or IP reputation database, actions resulting in DOS attacks for any SiteGround server, etc.
User is solely responsible for ensuring that all programs and scripts installed or used on the Services are secure and the permissions of directories and files are set properly. We recommend that you set the permissions on all directories and files to be as restrictive as possible. You are solely responsible for any actions and activity while using the Services, including any compromise of login credentials.
User agrees to keep all your login credentials secure at any time. We reserve the right to carry out audits to determine the security level of login credentials. In the event that we determine your login credentials have been compromised (e.g. were brute-forced, hijacked, stolen, etc.) and are being used or were used for uploading, maintaining, running unacceptable content, data materials or websites, we may suspend access to the compromised Service (including but not limited to Customer Account, hosting service, user accounts, website, FTP service, Email service). We will notify you if such actions are taken against your hosting account.
(a) No Intellectual Property Infringement by Host. The Host warrants that the use and proposed use of any software, programs, or applications by the User or any third party to access the Website does not and shall not infringe, and the Host has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to access the Website infringe on the rights of any such third party, the Host shall obtain a license or consent from such third party permitting the use of such items. (b) No Intellectual Property Infringement by User. The User represents to the Host and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the User, or that the User has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Host and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the User. The User further represents to the Host that its domain names or URL listings do not infringe, dilute, or otherwise violate third-party rights or trademarks. (c) Host Property Rights. All tools, know-how, and technology leased or licensed to the Host with respect to the hosting of the Website are the sole property of the Host, and the User has no ownership or other intellectual property rights in or to such items. (d) User Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the User, and the Host has no ownership or other intellectual property rights in or to such items.
11. GOVERNING LAW. (a) Choice of Law. The laws of the state of Oklahoma govern this agreement (without giving effect to its conflicts of law principles). (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Pontotoc County, Oklahoma.
12. AMENDMENTS. No amendment to this agreement will be effective unless it is in writing and signed by both parties.
13. ASSIGNMENT AND DELEGATION. (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection. (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party. (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
14. COUNTERPARTS; ELECTRONIC SIGNATURES. (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument. (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party’s signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
15. SEVERABILITY. If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
16. NOTICES. (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email. (b) Addresses. A party shall address notices under this section to a party at the following addresses: If to the Host: Phantom Marketing firstname.lastname@example.org (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
17. WAIVER. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
18. ENTIRE AGREEMENT. This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties’ agreement about the subject matter of this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement’s effectiveness. This agreement shall not override any external agreement unless with written consent by both parties.
19. HEADINGS. The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement’s construction or interpretation.
20. EFFECTIVENESS. This agreement will become effective when the User has completed a purchase order or paid invoice with successful payment. The date of purchase will be deemed the date of this agreement.
21. NECESSARY ACTS; FURTHER ASSURANCES. Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
EXHIBIT A Attach description of services and fees
Services and Fees can be found at https://phantm.marketing
EXHIBIT B SERVICE LEVEL AGREEMENT The Services are provided subject to the following terms, referred to as a “Service Level Agreement.”
1. HOST SERVICES AVAILABILITY. The Host shall use reasonable efforts to provide the Services at all times during the Term. However, from time to time Host services may be inaccessible or inoperable for any reason, including: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that the Host may undertake; or (c) causes beyond the Host’s control or that are not reasonably foreseeable by the Host. The Host shall provide as much advance notice as customary and reasonable for any unscheduled or emergency maintenance.
2. 99.99% NETWORK UPTIME. (a) Uptime Guarantee. (i) The Host guarantees network uptime 99.9% on an annual base, excluding Excusable Downtime (as defined below). (ii) Network uptime includes functioning of all Host network infrastructure including VPN, routers, switches, and cabling. (iii) Network uptime does not apply to services or software running on a Host server or other Host hardware components. (b) Downtime. Network downtime exists when the Host cannot forward packets on the User’s behalf and is measured from the time the User opens a trouble ticket with the Host until the server network is available to the User.
(c) Credits. If the annual average percentage of uptime falls below 99.9%: 2% credit towards a month of hosting.
3. EMERGENCY MAINTENANCE. (a) The Host may perform emergency maintenance if there is an immediate, material threat to Host servers or the Host services. (b) The Host will attempt to notify the User by email before emergency maintenance, but notice depends upon the severity and critical nature of the emergency maintenance. (c) Emergency maintenance does not count as downtime and is not included in the uptime guarantee calculations.
4. HARDWARE REPLACEMENT. The Host may replace hardware for any reason, at any time.
5. DOWNTIME EXCLUSIONS. The unavailability of Host services due to the following will not be considered to be downtime (and credits will not be issued) (“Excusable Downtime”):
(b)Emergency maintenance, hardware and software failure remedied under 1 hour;
(c)Downtime caused by DNS and/or IP address changes for which you have been notified, but you failed to set your configuration;
(d)Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events;
(eDowntime caused by the User, Phantm Marketing, User’s own configuration, or third-party applications you use;
(f)Downtime caused when the User reaches the maximum resources allocation for the plan;
(g)Downtime caused by User violation of these TOS or any other policy announced on Host’s website;
(h)Downtime during upgrade/downgrade of User’s Cloud or Dedicated Server resources;
(i)Downtime during processing of User technical support request(s); or
(j)Force majeure or any event beyond our control.
6. TROUBLE TICKETS. A member of the Host’s Network Operations Center Service Desk staff will be available to assist you with problems and questions regarding the hosting services. The Host will supply telephone or email support to you regarding the hosting services 24 hours a day, 7 days a week via email. If problem is determined to be non-hosting environment related a charge may be incurred at an hourly rate of $95.00. (a) User may open a trouble ticket using one of the following methods: (i)
9. DOWNTIME LIABILITIES. The Host is not liable for any damages the User claims to have suffered because of Host downtime or outages, including the unavailability of software, operating systems, applications, and data.
10. INTERNET BANDWIDTH. (a) Metered Bandwidth. (i) The User is charged based on the cumulative bandwidth usage each month. (ii) If bandwidth consumption is greater than the purchased amount, an overage charge is billed to the User. (b) Internet Bandwidth Measurement (i) Internet bandwidth is measured by taking samples of usage periodically minutes during a calendar month and collecting a fixed number of readings (cumulative of inbound feeds and cumulative of outbound feeds at the same measured point in time). The timing and number of readings will be set forth on an attached exhibit to this agreement. (ii) The measurements are stored and become data points. At the end of the month, all data points taken during the month are ranked in ascending order. (iii) The Host will discard a fixed percentage for each set (inbound and outbound) of data points. The percentage will be set forth on an attached exhibit to this agreement (iv) The highest remaining sample of t sets becomes the User’s sustained (base) or burstable usage number for that billing cycle. (v) The User will be invoiced at the end of each month for burstable internet bandwidth usage, if any.
CHANGE OF TOS
Host may modify these TOS at any time with immediate effect. We will inform you about modifications to the TOS by email. Host shall not be liable for your failure to receive an email notification due to an inaccurate email address.
If you do not agree to the changes in the TOS, you must suspend use of the Services and terminate this Agreement within ten (10) business days of receiving notification from us.
To the extent permitted by applicable law, continued use of the Services after you have received a notice for changes to the TOS will be considered as acceptance of such changes and in force in the agreement between the User and Host, unless you have sent us a termination notice.
Where the change in Terms is required by law or related to the addition of a new service, extra functionality to the existing Service(s) or any other change which neither reduces your rights nor increases your responsibilities, the TOS will be changed without prior notice to you and shall have immediate effect.
No clarification or explanation of the Terms provided by the Parties will have the power to modify the provisions of these TOS.
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