Hosting Terms of Service
DWDM provides server, website and software services to you subject to the following Terms of Service (“TOS”), which may be updated from time to time without notice. You can review the most current version of the TOS any time at: Terms and Conditions. In addition, when using any particular DWDM-owned or -operated services, you and DWDM shall be subject to any posted guidelines or rules applicable to such services, which may be modified from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. DWDM may also offer other services that are governed by different terms of service.
Service Level Commitment
DWDM will use commercially reasonable efforts to ensure the availability of Service and will attempt to maintain ninety-nine point nine nine nine percent (99.999%) availability (“Service Availability”). DWDM offers Customers a credit for Service Availability lapses in Service Availability as set forth in Section 2 below (“Performance Credit”). Service Availability is measured twenty-four (24) hours a day and seven (7) days a week in each calendar month.
- 5% of Monthly Service fees – Credited for 99.99% to 99.998%
- 10% of Monthly Service fees – Credited for 99.9% to 99.98%
- 25% of Monthly Service fees – Credited below 99.9%
Notwithstanding the foregoing, in no calendar month will the credit exceed twenty-five percent (25%) of the monthly Service charge for the affected month.
Customer must submit a written Performance Credit request to DWDM within ten (10) business days of the applicable lapse in Service Availability. Customer’s Performance Credit request must contain Customer’s Name, Affected Website(s), the dates and times of the lapse in Service Availability, and other relevant identification required by DWDM to validate Customer’s Performance Credit request.
Performance Credit Eligibility Exclusions:
- Outages caused by Customer-provided application software installed on DWDM Servers.
- Outage caused by delay or interruption in telecommunications provided by 3rd party services, including Domain Name System propagation service.
- Outages caused by any event or condition not wholly within the control of DWDM, including without limitation, acts of any governmental body, war, insurrection, or embargo.
- Outages during Customer scheduled or emergency maintenance events.
- Outages caused by negligence or willful misconduct of Customer or Customer’s customer(s).
- Outages caused by inability to obtain equipment or services needed for the provisioning of additional Services.
Our Services are offered for a fee. Depending on the Service, it may be a one-time fee (for example, for redesign of your website) or a recurring fee (for example, for a Hosting Plan). By using our Services, you agree to pay the associated fees, which we’ll bill or charge you for in regular intervals (such as monthly or annually), on a pre-pay basis until you cancel, which you can do at any time.
Provision And Use Of The Services
Subject to the terms and conditions of the Agreement, we will provide the Services to Customer. You shall provide us with all assistance as reasonably required for us to activate and operate the Services. The Services may only be used for their intended purposes and in accordance with this Agreement. Customer Content hosted by us may be scanned for malware and/or other items that may adversely affect our system(s) or platform. If malware is detected on Customer Content, DWDM may offer our malware removal service that must be accepted by You and completed before affected Customer Content can be migrated to our platform. Certain plug-ins are disallowed for use on our platform for security and performance reasons. Customer Content that contains disallowed plug-ins may result in you receiving a notification to remove or replace such disallowed plug-in within a reasonable amount of time. We reserve the right to disable or remove any disallowed plug-ins on Customer Content or otherwise restrict Services related to any disallowed plug-ins.
You acknowledge that we may engage third parties to provide or enable elements of the Services.
From time-to-time we may cease supporting aspects of the Services (any such event, an “End of Life”). Should components of the Services come to an End of Life, we will attempt to replace them with comparable components, but may not be able to do so. An End of Life is not a breach of this Agreement.
By agreeing to migrate your website to DWDM, you understand that your Customer Content may be scanned to detect malware and/or other items that may adversely affect our system(s) and/or platform security and/or performance.
If malware is detected on Customer Content, DWDM may offer our malware removal service, which must be accepted by you and completed before affected Customer Content can be migrated to our platform. Customer understands that we will take all reasonable efforts to detect malware on Customer Content and remove detected malware before migrated Customer Content onto our system(s) and/or platform.
Third Party Plug-Ins
Some plug-ins are disallowed for use on our platform for security and performance reasons. Customer Content that contains disallowed plug-ins may result in you receiving a notification to remove or replace such disallowed plug-in within a reasonable amount of time. We reserve the right to disable or remove any disallowed plug-ins on Customer Content or otherwise restrict Services related to any disallowed plug-ins.
DWDM shall have the right to terminate this Terms of Service with an immediate effect in writing to the Client if any of the following events occur.
- Client fails to make any payment when it becomes due,
- Client is in breach of any of its obligations under this Agreement,
- A liquidator is appointed over the Client or any of its assets,
- Client enters or proposes to enter into any arrangements with its creditors, including voluntary arrangements
- Client passes a resolution for winding up (other than for the purpose of reconstruction), or a court makes an order to that effect.
These Terms of Service may be terminated by either party, without cause, at any time, by giving the other party 14 days written notice. DWDM will accept termination by email (email@example.com). Any rights to terminate this Terms of Service shall be without prejudice to any other accrued rights and save as set out, no refunds will be made.
You expressly agree that use of DWDM Services is at your sole risk. Neither DWDM, its employees, affiliates, agents, third party information providers, merchants licensers, or the like, warrant that DWDM Services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through DWDM, unless otherwise expressly stated in this Agreement.
Under no circumstances, including negligence, shall DWDM, its offices, agents or any one else involved in creating, producing or distributing DWDM’s Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the DWDM Services; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to DWDM’s records, programs, or services. You hereby acknowledge that this paragraph shall apply to all content on DWDM Services.
DWDM specifically denies any responsibilities for any damages arising as a consequence of such unavailability. In the event that this material is not “server-ready”, DWDM may, at its option and at any time, reject this material, including but not limited to after it has been put on DWDM’s server. DWDM agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of DWDM. If the Client fails to modify the material, as directed by DWDM, within a reasonable period of time, which shall be determined between the parties themselves, the contract shall be deemed to be terminated.
Notwithstanding the above, your exclusive remedies for all damages, losses, and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate amount which you paid during the term of this Agreement and any reasonable legal fee and court costs.
Content Submitted Or Made Available For Inclusion
DWDM does not claim ownership of Content you submit or make available for inclusion on the Service, however, with respect to Content you submit or make available for inclusion on publicly-accessible areas of the Service, you grant DWDM and its Affiliate Companies the following worldwide, royalty-free, and non-exclusive license(s), as applicable:
* With respect to photos, graphics, audio, or video you submit or make available for inclusion on publicly-accessible areas of the Service, the license to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display such Content on the Service. This license exists only for as long as you elect to continue to include such Content on the Service and terminates at the time you or DWDM removes such Content from the Service.
* With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly-accessible areas of the Service, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
“Publicly accessible” areas of the Service are those areas of the DWDM network of properties that are intended by DWDM to be available to the general public.
Trademarks & Copyrights
You warrant that you have the right to use the trademarks and copyrights applicable to all content and/or products being made available through your account.
DWDM shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or DWDM Hosting’s server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
Entire Agreement. The TOS constitutes the entire agreement between you and DWDM and governs your use of the Service, superseding any prior agreements between you and DWDM with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other DWDM services, affiliate services, third-party content, or third-party software.
Choice of Law and Forum. The TOS and the relationship between you and DWDM shall be governed by the laws of the State of Washington without regard to any principles of conflicts of law. You and DWDM agree to submit to the personal and exclusive jurisdiction of the courts sitting in and for Clark County, Washington.
Waiver and Severability of Terms. The failure of DWDM to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your DWDM account is non-transferable and any rights to your membership ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Each DWDM account is only entitled to one refund
The section titles in the TOS are for convenience only and have no legal or contractual effect.
Please report any violations of the TOS to firstname.lastname@example.org