Your use of BitMetronome’s products or services, including trial versions, is at all times subject to the following terms and conditions (the “Terms”). You agree that all of the BitMetronome products or services that you use (the “Services”) shall be subject to these Terms as they may be amended and revised from time to time without notice excepted as posted on the BitMetronome web site.
- Domain Name Registration – BitMetronome may assist with the application for registration of domain names, or with the continuing management of registered domain names, which domain names may be registered in an account in BitMetronome’s name or in your name. In addition to the other Terms herein, such services are subject to the following specific terms:
1.1. The application for and registration of domain names is made through third-party domain name registrars. The registration and use of your domain name is subject to the terms of the applicable registrar and the laws and regulations that govern the ownership and use of domain names.
1.2. BitMetronome makes no representation that a domain name that you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has, or they have, been registered. Any action taken by you before such notification is at your risk.
1.3. BitMetronome shall have no liability for any refusal or denial by any third party to register a domain name or for any cancellation or transfer of a domain name by any third party (including any regulatory authority, governmental authority, court, or other party with a regulatory or administrative role regarding the ownership and use of domain names).
1.4. In the event of a dispute regarding your ownership or use of a domain name that BitMetronome manages for you, BitMetronome may, at BitMetronome’s discretion and without notice, withhold, suspend or cancel the domain name as deemed appropriate by BitMetronome without liability to you. BitMetronome may also take such actions and make such representations regarding domain names it manages for you as BitMetronome may determine are necessary or appropriate under the laws and regulations that govern the ownership and use of domain names without liability to you.
1.5. BitMetronome has no responsibility or liability regarding any domain name (including its renewal) that is not managed by BitMetronome.
- Web Site Hosting and Email – BitMetronome may provide website hosting and email services utilizing third-party providers (sometimes referred to as data centers). In addition to the other Terms herein, such services are subject to the following specific terms:
2.1. BitMetronome makes no representation and provides no warranty as to the accuracy or quality of information received by any person via a third-party website hosting server in connection with any BitMetronome services (the “Server”), and BitMetronome shall have no liability for any loss or damage to any data stored on the Server.
2.2. You are encouraged to take reasonable actions to protect your interests in data stored on the Server, including appropriate and regular backups and the maintenance of adequate insurance coverage for any loss or damage to data stored on the Server.
2.3. Your use of the Server and any web site on the Server will comply with all of the terms, rules, and regulations established by the third-party data center.
2.4. You represent and warrant to BitMetronome that you will use any web site hosted on the Server only for lawful purposes. In particular, you represent and warrant that:
a. You will not use the Server in any manner that violates any law or regulation or that infringes the rights of any third party, nor will you authorize or permit any other person to do so.
b. You will not post, link to or transmit:
i. Any material that is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way as determined by BitMetronome.
ii. Any material containing a virus or other hostile computer program.
iii. Any material that constitutes or encourages the commission of a criminal offence, or that infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person.
c. You will not utilize any resources provided by BitMetronome, including any web site hosting or email services, to send spam email, whether opt-in or otherwise.
d. You will not employ programs that consume excessive system resources including, but not limited to, processor cycles and memory. BitMetronome does not host IRC, IRC bots, or other server-resource-intensive programs.
e. If your hosting plan has bandwidth or disk storage limitations, your usage beyond those limitations will be subject to a surcharge for such excess usage at BitMetronome’s customary prices then in effect. You are responsible for monitoring your bandwidth and disk storage usage, which may be easily monitored via your control panel. If your hosting plan does not have a bandwidth or disk storage limitation and your usage of either increases dramatically beyond expectations when such plan was established, you agree to work with BitMetronome to appropriately accommodate such increases in usage. In the event of unusually heavy usage, additional fees may apply.
f. You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft, or unauthorized disclosure of your password or other security information.
g. You shall observe the procedures that we may from time to time prescribe and shall make no use of the Server that is detrimental to our other customers.
h. You shall ensure that all email is sent in accordance with applicable laws and regulations (including data protection legislation) and in a secure manner.
i. You will not send unsolicited email messages, including, without limitation, commercial advertising and informational announcements, or send email via scripts on the Server or using another site’s mail server to relay email.
j. You will be responsible for any and all costs incurred by BitMetronome as a result of your violation of these Terms, including, but not limited to, attorney fees and costs resulting from such violations. If it is necessary for BitMetronome’s technicians to address the results of any violations of these Terms, such as responding to complaints and providing cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations, you will be responsible for such services at the rate of US $175 per hour plus US $1 for each bulk-email or Usenet message sent, plus US $1 per complaint received.
3.5. BitMetronome reserves the right to remove from your web site without notice any material that BitMetronome deems inappropriate. BitMetronome does not host illegally obtained software, underage adult or pornographic content, or content that infringes on another person’s intellectual property rights.
3.6. If BitMetronome becomes aware of an alleged violation by you of its Terms regarding web hosting or email services BitMetronome may initiate an investigation. During the investigation BitMetronome may restrict your access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, BitMetronome may, at its sole discretion, restrict, suspend, or terminate your account and/or pursue other civil remedies. If such violation is a criminal offense, BitMetronome may notify the appropriate law enforcement department of such violation.
3.7. BitMetronome does not issue service credits for any outages incurred through service disablement resulting from violations of these Terms.
3.8. Your access to other networks connected to BitMetronome must comply with the rules appropriate for those other networks.
- Client Responsibility to Monitor Advertising and Marketing Material – BitMetronome may assist with the creation of advertising and marketing-related material and the dissemination of such material on various websites, including social media sites. In addition to the other Terms herein, such services are subject to the following specific terms:
3.1. You are responsible for monitoring all such material being generated and disseminated by BitMetronome on your behalf, and the responses, replies, and other customer and community reactions to such material.
3.2. You are responsible for promptly notifying BitMetronome of any concerns or objections you may have regarding any such material so BitMetronome may take timely action to address such concerns or objections.
3.3. You are responsible for all charges relating to the dissemination of such material during any and all periods that you provide no objection or request for change to BitMetronome.
- Payment Responsibilities; Consequences of Non-payment
4.1. You are responsible for payment for Services as provided by the Statement of Work and any invoices that BitMetronome may issue with regard to the Services. Your payment responsibilities include payment to BitMetronome for the charges paid by BitMetronome to third-party providers in connection with Services that have been delivered or for which payment has been irreversibly committed even if you subsequently provide notice of concerns or objections regarding those Services.
4.2. Unless otherwise specifically agreed between you and BitMetronome in writing, all payments are due not later than thirty (30) days following the invoice date for such amounts.
4.3. BitMetronome may assess interest at the rate of eighteen percent (18%) per year (one and one-half percent [1.5%] per month) on all amounts past due until such amounts are paid.
4.4. If you fail to pay any sums due to BitMetronome within the time that they are due, BitMetronome may suspend the Services and/or cancel the Services without notice to you.
4.5. If any of your charges are thirty (30) days or more past due, BitMetronome may suspend any and all of BitMetronome’s services, including the discontinuation of the operation of and/or access to any hosted web site of yours and the related data, until your unpaid balance is paid in full with any interest that has accrued on past due amounts.
4.6. If any of your charges are sixty-one (61) days or more past due, BitMetronome reserves the right to delete your account and all related data.
4.7. BitMetronome may refrain from releasing any domain name held in BitMetronome’s name until your unpaid balance is paid in full with any interest that has accrued on past due amounts.
4.8. If your check is returned as unpaid for any reason, you will be assessed a “returned check” charge of $45.00.
4.9. BitMetronome’s rights as provided herein are in addition to BitMetronome’s rights to pursue collection of any unpaid past due amounts, and in addition to any other legal or equitable rights that may accrue to BitMetronome as a result of your late payment or non-payment of charges.
- Performance of BitMetronome Services
5.1. BitMetronome will make reasonable efforts to perform and deliver its services within the time period identified in the Statement of Work or other documents relating to such services. However, circumstances beyond the control of BitMetronome may sometimes prevent delivery within such time period, and in such cases BitMetronome shall have no liability to you for such delay.
5.2. In its discretion, BitMetronome may arrange for some BitMetronome services or portions of such services to be performed by persons or organizations outside BitMetronome.
5.3. At your request, BitMetronome may provide consulting assistance regarding compliance with the various rules and regulations applicable to your activities in connection with the Services, particularly including the rules and regulations of third-party providers. BitMetronome does not warrant the accuracy of any information, direction, or advice BitMetronome may provide in this regard, and you are solely responsible for your compliance with all such rules and regulations.
5.4. In the event of an urgent development regarding the services BitMetronome is providing you, if BitMetronome cannot timely contact you for specific instructions regarding such development, BitMetronome may then take action on your behalf as it deems best considering such circumstances without liability to you.
5.5. BitMetronome will provide you credentials for the Services you engage. It is your responsibility to maintain security regarding those credentials. BitMetronome can assist in the resetting of passwords, but cannot retrieve existing passwords.
5.6. In the event of an outage in your service or any other urgent matter, you are free to contact us in any reasonable manner.
5.7. BitMetronome reserves the right to address support matters in any reasonable order, including on the basis of the severity of the need.
- Service Availability
6.1. BitMetronome will make reasonable efforts to make available to you at all times the Services you have engaged, but BitMetronome shall not, in any event, be liable for interruptions of or downtime of the Services. Furthermore, BitMetronome shall not be liable for non-receipt, misrouting, or other failure of email, content management systems, or data routing/manipulation.
6.2. BitMetronome shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is expected to last for more than 7 days you will be notified of the reason. BitMetronome does not offer any sort of compensation on any network uptime guarantee.
6.3. The Services provided to you cannot be transferred or used by anyone other than you.
- Term and Termination
7.1. The term period for any services engaged by you will be as set forth in the Statement of Work. Continuing services (for example, site edits, web site hosting and email services) shall automatically renew for additional term periods of equal duration (or as stipulated in the Statement of Work) unless you provide notice of intent not to renew at least 90 days prior to the expiration of the current term.
7.2. Unless otherwise stated in your SOW, the default period for all contracts is twelve (12) months with automatic renewal for the same period.
7.3 You may buyout the contract if you wish to terminate early. The buyout amount is one-hundred (100%) percent of the remaining amount to be invoiced through the term of the SOW and/or term.
7.4. If you violate these Terms, BitMetronome may suspend or cancel the Services.
7.5. BitMetronome reserves the right to suspend or cancel the Services at any time without cause. In that event you will be entitled to a refund of any amounts paid for undelivered Services.
8.1. You shall indemnify BitMetronome and hold BitMetronome harmless from and against any breach by you of these Terms and any claim brought against us by a third party resulting from the provision of Services by BitMetronome to you and your use of the Services including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by BitMetronome as a result of your breach or non-observance of these Terms.
- DISCLAIMER OF LIABILITY
9.1. YOU EXPRESSLY AGREE THAT THE SERVICES AND PRODUCTS PROVIDED BY BITMETRONOME ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. BITMETRONOME HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9.2. No claim shall be brought more than one year following the happening of the event giving rise to such claim.
- LIMITATION OF DAMAGES
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF BITMETRONOME IN CONNECTION WITH THE USE OF ANY SERVICES OR PRODUCTS PROVIDED BY BITMETRONOME, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO BITMETRONOME FOR SUCH SERVICES OR PRODUCTS IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL BITMETRONOME BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE SERVICES OR PRODUCTS PROVIDED BY BITMETRONOME. YOU AGREE THAT YOU WILL NOT HOLD BITMETRONOME RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE SERVICES OR PRODUCTS PROVIDED BY BITMETRONOME.
- Applicable Law
11.1. You agree that these Terms and the relationship between you and BitMetronome shall be governed by the laws of the State of Kentucky without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the Terms, or the relationship between you and BitMetronome, shall be brought exclusively in the courts located in Fayette County, Kentucky or the U.S. District Court for the Eastern District of Kentucky. You agree to submit to the personal jurisdiction of the courts located within Fayette County, Kentucky or the U.S. District Court for the Eastern District of Kentucky, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
- Inappropriate Conduct Prohibited
12.1. You shall not post, using any of the Services provided by BitMetronome, defamatory, scandalous, or private information about a person without their consent, material intended to inflict emotional distress, or material that infringes any intellectual property rights.
12.2. Any abuse towards any BitMetronome employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner. Cursing, yelling, or other intentionally disruptive behavior directed at BitMetronome or any of BitMetronome’s employees is a violation of these Terms. Similarly, any threat, whether verbal, oral, written, or delivered by third parties and directed towards BitMetronome or any of BitMetronome’s employees, partners, equipment, and concerns is a violation of these Terms.
12.3. BitMetronome shall have the sole discretion for determining whether inappropriate conduct has occurred.
12.4. No refunds shall be given when a suspension or cancellation of Services is the result of inappropriate conduct.
- General Terms
13.1. Headings are included in these Terms for convenience only and shall not affect the construction or interpretation of these Terms.
13.2. These Terms, together with any Statement of Work setting forth the Services to be provided by BitMetronome, contain the entire understanding between BitMetronome and you relating to the subject matter covered by these Terms and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between BitMetronome and you regarding such matters. No oral explanation or oral information given by any party shall alter the application and interpretation of these Terms.
13.3. There are no third-party beneficiaries of the Services or these Terms.
13.4. BitMetronome reserves the right to amend or modify these Terms at any time, effective immediately upon posting the amended or revised Terms on our website (URL: http://www.BitMetronome.com/terms-and-conditions). It is your responsibility to check these Terms from time to time for any such amendments or modifications.
13.5. Unless you specifically direct otherwise, BitMetronome may use your name as a client of BitMetronome in BitMetronome’s marketing communications.
13.6. “BitMetronome” refers to BitMetronome LLC, a Kentucky limited liability company with a mailing address of 776 Orleans Circle, Lexington, KY, 40517.