Terms of Service
This agreement ("Agreement") between HermeTek Network Solutions ("HermeTek")
and Customer governs the provision of services ("Services") by HermeTek to the
Customer. This agreement is effective the instant ("Effective Date") Customer
agrees to be provided with services by HermeTek Network Solutions. HermeTek
may revise this Agreement from time to time by posting a new version on their
website. Such revised terms will become effective thirty (30) days after the
posted or revised date. Continued use of the Services after such date constitutes
acceptance of the revisions to this Agreement.
The Services
This Agreement provides Customer with a license to utilize network services
provided by HermeTek.
Charges
a) All recurring charges shall be due and payable in advance, without
offset, deduction or prior demand on or before the first (1st) day of the
month for Service provided during that month, or for the predetermined period,
whichever may apply. Invoices or notices of invoices for recurring charges
are issued as a courtesy.
(b) Non-recurring charges including technical support, excess bandwidth usage
and overages or purchases of equipment or supplies, will be due and payable
upon Customer's receipt of invoice or notice of invoice. Customer is
responsible for monitoring transfer, bandwidth and power utilization, and
other services provided under this Agreement, and maintaining awareness of
the applicable charges due.
(c) Credit card payments for recurring charges will be processed on the first
business day of the month; payments for non-recurring charges will be
processed within ten (10) days of issuance of invoice or notice of invoice.
Customers paying by credit card are responsible for maintaining a valid
credit card on file with HermeTek. HermeTek may immediately interrupt
Service in the event a charge is denied.
(d) Payments by check, wire transfer or any other payment method must be
received on or before the due date or HermeTek may immediately interrupt
Service. A returned check will constitute a material breach of this
Agreement, and Customer will incur a $35.00 returned check fee, in addition
to any other remedies available to HermeTek.
Interruption of Services may include denial of access, remote hands and
tech support, internet connectivity, and/or power. Customers whose
Services are interrupted for nonpayment will pay [in addition to paying
all past due amounts] a $25.00 reconnect charge before Services are
restored. If Customer fails to pay amounts invoiced by HermeTek within
thirty (30) days of the invoice date, all such unpaid amounts shall accrue
interest from the invoice date at the lesser of one and one half percent
(1½%) per month or the maximum rate allowed by law. Fees or charges for
any fractional portion of a month shall be computed as one thirtieth
(1/30) of the basic monthly payment multiplied by the appropriate number
of days.
e) For non-tangible items, IE, hosting, you may cancel your service and be
issued a full refund during the first five days of service. After
the first five days, if you decide to cancel, you will receive a prorated
refund.
For tangible items, we have a 30 day money back guarantee on all appliances
and related items.
Acceptable Use Policy
(a) Customer asserts that it has read HermeTek's Acceptable Use
Policy ("AUP") posted at [http://www.hermetek.com/aup.php]. Customer
will adhere to the AUP and will not allow the Services or HermeTek
equipment to be used for activities prohibited by such policies.
HermeTek may revise the AUP from time to time by posting a new
version thereof on the HermeTek website, and Customer is responsible
for awareness of such revisions.
(b) Customer is responsible for preventing AUP violations and other
violations of the terms of this Section 3 and this Agreement by hackers
and other third parties. Third party violations of the provisions of
this Section 3 will be considered violations by Customer. HermeTek
is not responsible for protecting Customer from hackers or from other
third parties unless a service contract states otherwise.
(c) HermeTek may monitor the Service and disclose information
regarding use of the Services for any reason, including to satisfy
laws, regulations, or governmental, legal, or law-enforcement requests,
to operate the Service properly; or to protect itself and its
customers. HermeTek may grant law enforcement agencies access to its
equipment or Customer's equipment to monitor Customer's use of the
Service.
(d) Notwithstanding any provision to the contrary elsewhere in this
Agreement, HermeTek may immediately and without notice terminate
this Agreement, or suspend Service, in whole or in part, in the event
of a violation or suspected violation of HermeTek's AUP.
Ownership
All software, hardware and Internet protocol ("IP") addresses provided by
HermeTek are licensed to Customer and remain HermeTek's sole and
exclusive property.
Maintainence, Security, and Interruption
(a) HermeTek may interrupt Service to perform maintenance on
HermeTek equipment. HermeTek will exercise reasonable
efforts (i) to inform Customer before interrupting Service
and (ii) to restore the system promptly.
(b) Customer is responsible for maintaining security, for
maintaining patches and disaster recovery systems, and for
maintaining backups. HermeTek will not be liable for loss
of data or for breaches in system integrity, even if
Customer's Service includes firewalls, backups, denial of
service protections, or other mechanisms to protect data and
system integrity. In the event that HermeTek suspects that
security of any equipment has been breached, it may disable
such equipment and the Service.
(c) In the event that Customer's use of Service causes a
denial of service or in any other way injures the functioning
of services HermeTek provides to other customers,
HermeTek may interrupt Service or permanently disable it,
even if such denial of service or injury occurred through no
fault of Customer's.
(d) HermeTek will not be liable for service interruptions,
including without limitation interruptions executed in order
to investigate suspected AUP violations, whether or not such
violations occurred.
Disclaimers and Warranties
(a) HermeTek will not be liable for any consequential,
incidental, exemplary, punitive, or multiple damages, even if
HermeTek was advised in advance of the possibility of such
damages. HermeTek's maximum liability arising out of or
related to this agreement will not exceed the total amount of
fees billed to customer during the twelve (12) months preceding
the claim.
(b) HermeTek will have no liability whatsoever for any
claims, losses, actions, damages, suits, or proceedings
resulting from: (i) other HermeTek customers or third parties
accessing customer's data or assigned computers; (ii) security
breaches; (iii) eavesdropping; (iv) denial of service attacks;
(v) interception of traffic sent or received using the equipment
or Service; (vi) customer's reliance on or use of the equipment
or Service; (vii) mistakes, omissions, interruptions, deletions
of files, errors, defects, delays in operation, or other
failures of performance of the equipment or Service; (viii) the
accuracy, completeness, and usefulness of the Service; (ix) loss
of data or loss of access to data; or (x) loss of equipment or
injury to equipment.
(c) HermeTek shall not insure or be responsible for any loss
or damage to property of any kind owned or leased by Customer
except to the extent such liability results from HermeTek
gross negligence or willful misconduct. Any policy of insurance
covering the property owned or leased by Customer against loss
by physical damage shall provide that the underwriters have
given their permission to waive their rights of subrogation
against HermeTek, its affiliates and their directors,
officers, partners, and employees, as well as their
subsidiaries, and their respective directors, officers,
partners, and employees.
(d) HermeTek's limitations and exclusions of liability set
forth in this section 7 and in this agreement apply equally to
HermeTek's officers, employees, agents, contractors,
representatives, suppliers, subsidiaries, parents, and
affiliated companies.
Idemnity and Third Party Claims
(a) Customer will defend and indemnify HermeTek, its officers,
employees, agents, contractors, representatives, suppliers,
subsidiaries, parents, and affiliated companies from any third
party claim arising out of or related to: (i) alleged Customer
conduct that would breach this Agreement, including without
limitation alleged infringement of third party intellectual
property or privacy rights; (ii) Customer's use, misuse, or
failure to use the Service; and (iii) any action taken by
HermeTek as part of an investigation into a suspected violation
of this Agreement or as a result of its conclusion that a
violation has occurred. Such Customer obligation includes payment
of losses, expenses, damages, and costs, including without
limitation attorneys' fees.
(b) Upon HermeTek's request, Customer will immediately notify
any third party that HermeTek is not responsible for (i) any
content or materials posted on any Customer website or otherwise
disseminated through Customer's use of the Service or (ii) any use
or abuse of the Service whatsoever by Customer or any third party.
Service Level Agreement
100% Network Guarantee: HermeTek offers a 100%
uptime guarantee on all network related services (i.e.
bandwidth, routers, switches, and cabling). The 100% uptime
guarantee is applicable to all network services delivered to
customers and does not include server hardware,
customer-generated outages created by failed equipment,
exploited servers, misconfigurations or traffic in excess of
the maximum allowed by contract are not subject to the SLA.
Service credits are based directly on all equipment and/or
services affected by a network outage. Services or hardware
not related to the network outage will not qualify for a
service credit. Customer credits are equal to one day's
usage for every hour of outage, not to exceed one month's
recurring charges.
General Provisions
a) Customer shall not, and has no power, authority or
right, to create, and shall not permit, any lien or
encumbrance, including, without limitation, tax liens and
mechanics' liens, on the Equipment, Space or Facility. In
no event shall HermeTek subordinate or be required to
subordinate its interest in the Facility to any person.
(b) This Agreement constitutes the entire Agreement between
HermeTek and Customer pertaining to the subject matter
and geographic locations set forth in this Agreement, and
supersedes any prior Agreements, whether written or oral.
(c) Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance
under this Agreement, due to any cause beyond is reasonable
control, including acts of war, acts of God, earthquake,
flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that
the delayed party: (a) gives the other party prompt notice
of such cause, and (b) uses its reasonable commercial
efforts to correct promptly such failure or delay in
performance.
(d) HermeTek and Customer are independent contractors
and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency
between HermeTek and Customer. Neither HermeTek nor
Customer will have the power to bind the other or incur
obligations on the other's behalf without the other's prior
written consent, except as otherwise expressly provided in
this Agreement.
(e) HermeTek and Customer warrant that their respective
undertakings will be performed in a professional and
workmanlike manner in accordance with this Agreement.
HermeTek MAKES NO OTHER WARRANTY UNDER THIS AGREEMENT,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(f) This Agreement shall be governed by and construed under
the substantive laws of the State of Texas. Jurisdiction
and venue for purposes of any litigation in connection
herewith shall be in the Gregg County, Dallas, Texas. In
the event of litigation hereunder, the prevailing party
shall be entitled to an award of reasonable attorney's fees
and court costs at all trial and appellate court levels.
(g) All written communications to Customer will be deemed
delivered if sent to the contact information provided to
HermeTek at the time of signup, unless Customer provides
some alternate contact information in writing. All written
communications to HermeTek and all charges will be
mailed to P.O. Box 150132, Longview, TX 75615, unless
HermeTek posts alternate contact information at its website.
