Legal

This Terms of Service Agreement (“Agreement”) is by and between you (“Customer” or “you”) and Hivelocity, Inc. (“Hivelocity”), a Florida corporation and governs Hivelocity’s provision of products and services to you, which may be more specifically described in: (i) the Order Form submitted in connection with an online transaction (the “Order Form”); (ii) the Service Level Agreement (as in effect from time to time and set forth on Hivelocity’s website, the “SLA”) governing the Customer’s limited right to recover certain service credits; and (iii) Hivelocity’s technical support descriptions (collectively clauses (i) through (iii), the “Services”). This Agreement shall be effective as of the first date on which you use the Services and, by using any Service provided by Hivelocity, you manifest your assent to be bound to this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must immediately discontinue your use of the Services immediately. Hivelocity reserves the right to replace, modify, or amend the terms of this Agreement at any time, and your continued use of any of Hivelocity’s Services after a replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of asset to, and agreement with, any replacement, modification, or amendment herein.

 

This Agreement hereby incorporates by reference the SLA, Hivelocity’s Privacy Policy (as in effect from time to time as set forth on Hivelocity’s website, the “Privacy Policy”), and the Order Form, each of which is made a part of this Agreement as if fully restated herein. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable.

 

PLEASE READ THIS AGREEMENT CAREFULLY. This is a binding agreement between Customer and Hivelocity and includes automatic renewal terms.

NOTICE OF ARBITRATION: THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND HIVELOCITY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUT AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

 

1. Services and Monthly Commitments

Hivelocity agrees to provide the Services in accordance with the pricing, terms, and conditions of this Agreement beginning on the Effective Date. Hivelocity may perform additional technical, supplemental, or professional services for Customer at either Hivelocity’s published pricing rates or at rates mutually agreed to in writing between Customer and Hivelocity. Each Order Form submitted through the Services is an offer to Hivelocity to provide the Services listed in the Order Form. No Order Form will have been deemed to have been accepted by Hivelocity until the subject matter in the Order Form is provided by Hivelocity to Customer.

From time to time, there may be information displayed through the Services that contains typographical errors, inaccuracies, or omissions that may relate to Service descriptions, pricing, and availability. Hivelocity reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted an order requesting Services). Hivelocity reserves the right to refuse an Order Form that is incorrectly listed or inaccurately calculated at checkout.

 

2. Term and Renewal

Unless Customer agrees to a one-year, semi-annual or quarterly term, or unless otherwise stated in an Order Form or any service description, the initial term (“Initial Term”) of this Agreement shall be month-to-month, (A) commencing on the Effective Date, and shall automatically renew on the monthly anniversary date (date of initial signup) for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement, or, (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a “Renewal Period”). Customer agrees to be bound by the service term selected on the Order Form or via applicable promotional codes. Hivelocity may cancel or elect not to renew the Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.

 

3. Domain Registration

Hivelocity provides domain name registration services through OpenSRS, and Customer’s registration of domain names through the Services are subject to OpenSRS’s Master Domain Registration Agreement, which is located at the following link and is hereby incorporated by reference as if fully restated herein: https://opensrs.com/wp-content/uploads/Master_Domain_Registration_Agreement.html. Customer’s registration of domain names is also subject to ICANN’s Registrant Benefits and Responsibilities, and Customer is directed to review ICANN’s Registrant Education when registering a domain name:

 

ICANN’s Registrant Benefits and Responsibilities

 

Registrant Education

 

4. Customer Cancellation or Non-Renewal

In order to cancel or elect not to renew any Service, Customer must login to Customer’s myVelocity control panel, go to the device Customer wishes to cancel, click the cancellation button, and fill out the form. All account cancellations must be received in the above manner at least five (5) days in advance of the date of renewal. Accounts cancelled with less than five (5) day’s notice shall be cancelled at the end of the next term and shall be charged accordingly. When a cancellation request is made, Hivelocity will immediately remove all configuration information as well as all contents of the account on the date of the next renewal of the account. Customer may request immediate cancellation if so desired. Hivelocity will remove all files. This may include unread e-mail left on the server.

 

CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CANCELS THE PRODUCTS AND SERVICES AS PROVIDED IN THIS SECTION.

 

5. Termination

Hivelocity may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events (“Hivelocity Termination”): (i) Customer’s failure to pay any amount due hereunder; (ii) Customer’s material breach or violation of any provision of this Agreement (other than such violations set forth in clauses (iii), (iv) and (v) below) that is not cured within twenty-four (24) hours of Customer’s receipt of written notice from Hivelocity referencing such breach or violation; (iii) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; (iv) Customer’s violation of Hivelocity’s Privacy Policy; (v) if Hivelocity determines in its sole discretion that Customer engages in any business or conduct which is unethical, illegal or could subject Hivelocity to liability, embarrassment or cause damage to Hivelocity’s business or reputation; or (vi) if Customer exhibits abusive behavior towards Hivelocity representatives via phone or online communication. Hivelocity determines in its sole discretion what behavior is considered abusive and subject to immediate termination. In such events listed above Hivelocity shall have no obligation to refund any funds paid in advance by customer.

 

Customer may terminate this Agreement with respect to all, and not less than all, of the Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by Hivelocity of its obligations to provide the Services according to the terms of this Agreement that is not cured within fifteen (15) business days after written notice from Customer describing such breach in detail is received by Hivelocity (“Customer Termination”). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and, (2) if the Products and Services include software for which Hivelocity does not then provide general customer support, Customer shall pay to Hivelocity an amount equal to Hivelocity’s cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to Hivelocity an amount equal to all unpaid Charges through the effective date of such termination and, (A) in the case of any Service subscribed for on a month-to-month basis, all Charges for the Service through the remainder of the Initial Term or the then-current Renewal Term, as applicable, or, (B) in the case of any Service subscribed for other than on a month-to-month basis, all Charges for the Service through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination. CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.

 

Upon termination of this Agreement, Hivelocity and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to Hivelocity under these Terms of Service, (ii) immediately remove from Hivelocity’s premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from Hivelocity Network (including all servers owned or operated by Hivelocity), and (iii) return to Hivelocity all software, access keys, and any other property provided to Customer by Hivelocity under this Agreement. Any physical property of Customer not removed from Hivelocity’s premises within forty- five (45) days after such termination shall become the property of Hivelocity, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 8, 9, and 14 shall survive the expiration, cancellation, or termination of this Agreement for any reason.

 

6. Payment

Customer agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively “Charges”) are denominated in US dollars. Each Customer agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of for Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by three (3) days to allow for server provisioning and delivery. Customer also shall pay to Hivelocity all expenses incurred by Hivelocity in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys’ fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by Hivelocity is given to Customer, Hivelocity may suspend performance under this Agreement and if such past due amounts remain unpaid for an additional five (5) days thereafter, Hivelocity may terminate this Agreement. Hivelocity may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to Hivelocity within sixty (60) days of the invoice date. Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding. The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by Hivelocity for any reason constituting “Hivelocity Termination” (as defined above) or by Customer for any reason other than “Customer Termination” (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by Hivelocity according to the terms herein.

 

7. Billing Terms

a. Payment Methods. Hivelocity accepts credit card payments via MasterCard, VISA, and AMEX. Usage of a credit card indicates authorization to cover all future recurring charges and additional fees with the credit card on file. Credit cards will be charged on the renewal date for the account. Accounts will renew automatically on the anniversary of each billing cycle unless the proper cancellation notice is submitted to our billing department (see Cancellation Policy below). Credit cards on file are not usable when any of the following occur: (1) the card expired; (2) the bank declines the charges; (3) the card is reported lost or stolen; (4) the card is otherwise declared invalid.

 

Hivelocity also accepts PayPal, wire transfers, personal checks, company checks, e-checks, select crypto currencies, bank ACH, money orders or any other agreed upon payment method. All funds must be payable in U.S. dollars. Hivelocity does not accept international checks in foreign currencies.Payment for services by check must be received prior to renewal dates to avoid interruption of service. Wire transfer information is available upon request.

 

Some Customers may be approved by Hivelocity, in its sole discretion, for payment via invoice. Customers approved for payment by invoice may require a deposit on their account equal to no less than two months contracted and estimated charges.

 

b. Payment Processing and Late Fees. Unless otherwise agreed to in writing, Customer authorizes HIVELOCITY to automatically charge Customer’s pre-arranged credit card PayPal or bank ACH transfer for all charges owed. In the event that an automatic payment authorization is not able to be processed, Customer will be notified by HIVELOCITY and the Customer agrees to remedy the automatic payment arrangements. HIVELOCITY may elect at its discretion to allow the Customer to be invoiced for their services. In this event Customer accepts an increase of 5% of the total invoice amount as consideration for the additional processing of the Customer’s billing. If invoiced, Customer agrees that all invoices will be paid on time. Delinquent payments will be subject to a late payment charge of $25.00. (There is a 3-day grace period for payments). All delinquent amounts owed to HIVELOCITY shall accrue interest at the lesser of 18% per annum or the highest lawful rate.

 

In the event it becomes necessary to suspend service to a Customer’s account due to non-payment there will be a reconnection fee in the amount of one month’s service not to exceed $200. All past due invoices, late fees, and reconnection fees must be paid prior to service reconnection. HIVELOCITY reports the payment history of its Customer accounts to commercial and personal credit reporting agencies.

 

If Hivelocity is required to return Customer’s check for any reason, service will be immediately suspended and Customer will be sent a suspension e-mail allowing seven (7) days to rectify the situation. If within the seven (7) days Customer fails to pay all service fees, including a reactivation fee in the amount of one month’s service not to exceed $200 and a $25.00 returned check fee, their account will be permanently cancelled. Such cancellation does not relieve Customer’s obligation for payment under the terms of the hosting agreement. Cancellation includes the removal of all files on the account.

 

In the event of a charge back, Hivelocity will immediately suspend all services to Customer until such time as full payment is received in addition to a $25.00 charge back fee and a reconnection fee in the amount of one month’s service not to exceed $200.

 

c. Disputed Amounts. Customer shall promptly, but in no event later than thirty (30) days after receipt of an invoice, notify HIVELOCITY in writing of any disputed invoice or credit amounts. The parties agree to investigate and work together in good faith to resolve the dispute within thirty (30) days of notice to HIVELOCITY. Any disputed charge not brought to HIVELOCITY’s attention within thirty (30) days of receipt of an invoice shall be deemed undisputable thereafter.

 

d. Modification of Pricing. Hivelocity also reserves the right, at any time and in its sole and absolute discretion, to increase the price of any of the Products or Services by providing to Customer thirty (30) days prior written notice. Such changes may include, but are not limited to, an increase in price to account for any increase in the United States Consumer Price Index. Customer’s continued use of the Products or Services after a change in the price constitutes Customer’s acceptance of the changed price and agreement to the modification of the contract between Hivelocity and Customer.

 

e. Cancellation. Customer may request cancellation of their account through the myVelocity control panel. All account cancellations must be received at least five (5) days in advance of the date of renewal. Accounts cancelled with less than five (5) days’ notice shall be cancelled at the end of the next term and shall be charged accordingly.

 

When a cancellation request is made, Hivelocity will immediately remove all configuration information as well as all contents of the account on the date of the next renewal of the account. Customer may request immediate cancellation if so desired.

 

f. Chargebacks. In the event Hivelocity receives a chargeback notice in connection with any of Customer’s services, we reserve the right to take the following action: (1) Terminate any and all services Customer has with us; (2) require future payments be made via wire transfer or PayPal; and/or (3) require a prepayment of three (3) months for future service via wire transfer, crypto currency payment, money order or bank certified funds.

 

g. Your Responsibility to Keep Billing Information Current. Customer is solely responsible for keeping all personal and billing information current at all times. Personal and account information may be changed via Customer’s myVelocity portal or by opening a ticket via email at [email protected]

 

h. Invoices and Statements. Customer may request Hivelocity to send an invoice or account statement via e-mail at no charge. Customer may request Hivelocity to send an invoice or account statement via postal mail. Hivelocity will charge the Customer $5.00 per invoice/statement sent via this manner.

 

i. Taxes. Hivelocity is not liable for any taxes or other fees to be paid in accordance with or related to purchases made from Customer.

 

j. Bandwidth and Overages. Unmetered Bandwidth may be purchased in agreed upon increments (the “Agreed Usage”) . Customer’s selected level of unmetered bandwidth may be capped at their server’s network adapter as well as the switch port they are connected to. The server will obtain Customer’s selected full port speed 24 hours per day/7 days per week and will not accrue bandwidth overages charges as Customer will not be able to exceed the Agreed Usage.

 

All of our standard metered bandwidth server plans include a finite amount of monthly data transfer denoted by the amount of GB/TB included. On our standard server offerings, Customer will purchase an allotted amount of bandwidth for their server and they will be billed based on their monthly use. Hivelocity will calculate Customer’s bandwidth use each month based on their total data transferred in a given billing period. Only outgoing traffic is counted and applied towards the Agreed Usage.

 

Customer agrees that bandwidth usage shall not exceed the Agreed Usage without overage fees and/or penalties occurring. Hivelocity will monitor Customer’s bandwidth and reserves the right to take corrective action if Customer’s bandwidth exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection, or discontinuance of any and all Services, or termination of these Terms of Service, which actions may be taken by Hivelocity in its sole and absolute discretion. If Hivelocity takes any corrective action under this Agreement, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that Customer exceeds the Agreed Usage, Hivelocity may, at its sole discretion, collect overage fees, in the amount of $0.01 per GB from Customer, or to the extent that Customer has a credit card on file with Hivelocity, apply such charge against Customer’s credit card. Data transfer in excess of the Agreed Usage shall be automatically billed to Customer. Unused Agreed Usage or bandwidth allocations cannot be carried over to future months or applied to other servers.

 

 

8. Indemnification

Customer agrees to indemnify, defend, and hold harmless Hivelocity, its subsidiaries, their affiliates, and each of their respective directors, officers, employees, shareholders, and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, attorneys’ fees, or any and all costs (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of or are related to: (1) Customer’s violation of any term or condition of this Agreement; (2) Customer’s use of the Services; (3) Customer’s violation of the rights of third parties, including any intellectual property rights or other personal or proprietary rights; (4) Customer’s breach of any confidentiality obligation; or (5) Customer’s violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Customer’s obligation to indemnify and defend an Indemnified Party will not provide Customer with the ability to control the Indemnified Party’s defense, and each Indemnified Party reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

 

9. Disclaimers; Limitation on Company Liability.

LIMITATION ON LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, CUSTOMER ACKNOWLEDGES THAT HIVELOCITY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE SERVICES OR DOWNTIME. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP, AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON HIVELOCITY’S NETWORK OR ANY SERVER OWNED OR OPERATED BY HIVELOCITY. IN NO EVENT SHALL HIVELOCITY’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO HIVELOCITY IN THE BILLING CYCLE IMMEDIATELY PRECEDING SUCH CLAIM. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND HIVELOCITY SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST HIVELOCITY MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE RECEIPT OF A SERVICE CREDIT AS PROVIDED FOR IN THE SLA CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND HIVELOCITY’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY FAILURE OF HIVELOCITY NETWORK, HIVELOCITY HARDWARE OR HIVELOCITY INFRASTRUCTURE OR THE FAILURE BY HIVELOCITY TO PROVIDE CUSTOMER WITH THE PRODUCTS AND SERVICES OR MANAGED HOSTING SERVICES PURCHASED BY CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT WHICH RESULTS FROM A QUALIFIED NETWORK DOWNTIME EVENT OR ANY OTHER QUALIFIED DOWNTIME EVENT.

 

Beta/Early Access Disclaimer. As part of its’ business model, Hivelocity is constantly developing new and innovative Services. From time to time, Hivelocity will offer such newly developed Services (sometimes referred to as test, beta, pilot, early access, experimental, pre-release, limited release, developer preview, etc.). In the event that Customer uses any such Services, such use shall only be for testing purposes, and not for actual production. Except as expressly stated otherwise in writing, such Services are provided “as is,” and are provided without any warranty, indemnifications, or other responsibility or liability on the part of Hivelocity. Such Services, in many cases, have not been fully developed or tested, and may have flaws and vulnerabilities. Hivelocity accepts no liability for any harm or damage arising out of or in connection with Customer’s use of such Services and Customer’s use of such Services in a production environment is not recommended and would be at Customer’s sole risk. Hivelocity may discontinue or modify such Services at any time in its sole discretion.

 

10. Acceptable Use Policy

When using the Services, Customer must, at all times, abide by Hivelocity’s Acceptable Use Policy. This Acceptable Use Policy includes a non-exclusive list of the actions prohibited by Hivelocity when using the Services, and Hivelocity reserves the right to modify the Acceptable Use Policy at any time and within its sole and absolute discretion.

 

When using the Services, you agree that the following actions are prohibited:

• Transmitting, distributing, or storing of any material in violation of any applicable law or regulation, including, but not limited to, material protected by copyright, trademark, trade secret, or other intellectual property laws or that is used without proper authorization or material or material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws;

• Selling, advertising, or offering for sale of illegal drugs or narcotics;

• Illegal gambling or lotteries;

• Illegal arms trafficking;

• Stalking or other violations of state or federal law;

• Providing hacking tools or attempting, without authorization, to access a computer system;

• Schemes to defraud, annoy, abuse, threaten, or harass;

• Violating US or international export restrictions;

• Interfering with or disrupting the Services or servers or networks connected to the Services;

• Activities related to certain crypto processes that may cause hardware failure;

• Circumventing the technological protection measures of the Services;

• Sending unsolicited or unauthorized communications to users of the Services or third parties, such as unsolicited bulk email or spam;

• Running mailing lists where users have not “opted-in”;

• Opening an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at https://www.spamhaus.org/rokso;

• Attempting to gain access to any account or computer resource that does not belong to Customer;

• Participating in denial of service (DDoS) attacks; or

• Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.

 

11. Accessibility Policy

Hivelocity is committed to providing Services that accommodate users with special needs or requirements, including those with disabilities.

 

In order to provide accessible and usable Services, Hivelocity undertakes commercially reasonable efforts to conform with the Worldwide Web Consortium’s Web Content Accessibility Guidelines version 2.1, Level AA Conformance (WCAG 2.1 Level AA). Where conformance with these standards is not technically feasible or may require extraordinary measures to implement the standards, Hivelocity has provided alternative means by which those with disabilities may access or interact with the Services, including, but not limited to, by implementing a telephone number to provide live support.

 

Hivelocity takes the accessibility and usability of its Services seriously and priorities accessibility fixes to ensure that accessibility issues are remedied at the same level of priority as any other critical feature of the Services. Hivelocity also instructs its employees and contractors on accessibility to ensure that, in their respective roles, they can aid those with disabilities in placing orders both through the Services and through alternative means.

 

If you have difficulty in accessing the Services, or if you have any feedback or suggestions as to how Hivelocity can improve the accessibility of its Services please contact Hivelocity directly at (888) 869-4679 or [email protected]

 

12. Miscellaneous Terms

a. Consent. Customer consents to Hivelocity’s use of Customer’s name and logo during the term of service solely to identify Customer as a client of Hivelocity.

 

b. Notices. Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by internationally recognized overnight courier or registered or certified mail (return receipt requested) to the address of Customer listed in Hivelocity’s records or if to Hivelocity then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).

 

Hivelocity, Inc

Attn: Legal Department

8010 Woodland Center Blvd

Suite 700

Tampa, FL 33614

Toll Free: 888-869-4678

Local: 813-471-0355

[email protected]

 

c. Waiver. It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.

 

d. Severability. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected

 

e. Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.

 

f. Non-Solicitation. During the term of this Agreement and for twelve (12) months following termination of this Agreement, Customer agrees that it shall not solicit for employment with Customer (or with any other party) any employee of Hivelocity or interfere in the employment relationship between Hivelocity and any of its employees.

 

g. Ownership. (i) Hivelocity shall be the sole owner of all intellectual property, and all derivatives thereof, that Hivelocity may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Products and Services. (ii) Hivelocity employs an application programing interface (API) for Customers’ use in the consumption and management of Hivelocity Products and Services. Any APIs are licensed to the Customer, are revocable and are non-exclusive for the Term for Customer’s use solely in managing or exchanging data with the Products and Services, and subject to the terms, conditions and restrictions applicable to the Products and Services. If Hivelocity provides software for Customer to install on Customer’s equipment, or on other Customer or third party operated equipment, such software is licensed on a non-exclusive, limited term and revocable basis, for Customer’s use solely in connection with the Products and Services, subject to the terms, conditions and restrictions applicable to Hivelocity technology generally.

 

h. Customer Hardware. Hivelocity acknowledges and agrees that the hardware provided by Customer to Hivelocity to be used in connection with any Products and Services (the “Customer Hardware”) is the property of Customer and shall be tagged and identified as such. Hivelocity shall not pledge, hypothecate or otherwise encumber the Customer Hardware in any way and upon demand by Customer shall surrender the Customer Hardware to Customer, unless Customer fails to remove such Customer Hardware as provided for in Section 5 above.

 

i. Third-Party Beneficiaries. There shall be no third party beneficiaries to the Agreement, including customers, employees, agents, or insurers.

 

j. Assignment. This Agreement shall not be assignable by Customer without Hivelocity’s prior written consent. Hivelocity may assign the Agreement in whole or in part upon written notice to Customer. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.

 

13. Agreement to Arbitrate

For purposes of this Section, “Dispute” shall mean any dispute, claim, or action between Customer and Hivelocity arising out of or relating to the Hivelocity’s provision of Products or Services, the Customer’s use of and payment for those services, or any other transaction involving you and Hivelocity, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. Moreover, notwithstanding anything else in the Agreement, you agree that a court, not the arbitrator, may decide if a claim falls within one of these six exceptions.

 

a. Dispute Notice. In the event of a Dispute, Customer or Hivelocity must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Hivelocity must be addressed to the address listed for Notices in Section 9(b), above (the “Hivelocity Notice Address”). The Dispute Notice to Customer will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Hivelocity and Customer do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, Customer or Hivelocity may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.

 

b. Binding Arbitration. In the event Customer and Hivelocity do not reach an agreement to resolve the Dispute as stated in the preceding paragraph, Customer and Hivelocity further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions in the Agreement; (b) the Agreement memorializes a transaction in interstate commerce; (c) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (d) this Section shall survive termination of the Agreement. ARBITRATION MEANS THAT CUSTOMER WAIVE CUSTOMER’S RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND CUSTOMER’S GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award Customer the same damages as a court sitting in proper jurisdiction could and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.

 

c. Small Claims Court. Notwithstanding the foregoing, Customer may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.

 

d. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. CUSTOMER AND HIVELOCITY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.

 

e. Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at https://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Section, except that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the JAMS Rules and the rules set forth in this Section, the rules set forth in this Section shall govern. Customer may, in arbitration, seek any and all remedies otherwise available to Customer pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of the Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to, any claim that all or any part of the Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Customer may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Hillsborough County, Florida, at your option.

 

i. Initiation of Arbitration Proceeding. If either Customer or Hivelocity decide to arbitrate a Dispute, we agree to the following procedure:

• • • • • Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. Customer can find a copy of a Demand for Arbitration at https://www.jamsadr.com (“Demand for Arbitration”).
        • Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:
          
          JAMS
          600 Brickell Ave.,
          Suite 2600
          Miami, FL 33131, U.S.A.

           

        • Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
          

ii. Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Hivelocity or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Hivelocity is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.

 

iii. Arbitration Fees. If you recover more in the arbitration than the last offer of resolution or settlement made to you by Hivelocity, Hivelocity shall pay, or (if applicable) reimburse Customer for, all JAMS filing, administration, and arbitrator fees for any arbitration commenced (by you or Hivelocity) pursuant to provisions of the Agreement.

 

f. Amendments to this Section. Notwithstanding any provision in this Agreement to the contrary, Customer and Hivelocity agree that if Hivelocity makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Hivelocity’s address) in this Section, Hivelocity will obtain Customer’s affirmative assent to the applicable amendment. If Customer does not affirmatively assent to the applicable amendment, Customer is agreeing that Customer will arbitrate any Dispute between us in accordance with the language of this Section.

 

g. Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void, with the exception of Section 13(h). The terms of this Section shall otherwise survive any termination of these Policies and Procedures

 

h. Exclusive Venue for Other Controversies. Hivelocity and Customer agree that any controversy that is not covered by the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Hillsborough County, Florida, or the United States District Court for the Southern District of Florida, and each party hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for any such controversy.

 

i. Survival. The terms of this Section 12 shall otherwise survive any termination of these Terms of Service.

 

Published on 06/07/2022