Freestone Products Terms and Condition.
Acceptance of Terms
This Terms of Service (TOS) agreement is between you (Client) and Freestone Products Ltd. (Freestone) a Colorado Corporation, and its legal successors and assigns. Freestone Products Ltd. may do business under the names Freestone IT™ and Freestone Cart™.
By accepting this Terms of Service (TOS) electronically, via email or in writing, and/or by using any of Freestone’s services, Client agrees to be bound by these terms and conditions. Client also agrees that Client’s electronic acceptance of this TOS shall have the same force and effect as if Client had agreed to this TOS in writing.
Failure to comply with the TOS may result in account termination. By using Freestone’s services Client agrees to (and hereby signs) the most current version of the TOS. Client’s acceptance of the TOS is binding upon all Freestone services including the purchase of additional services or additional websites at a later date.
Freestone reserves the right to change this agreement without notice and will post the current agreement on www.freestoneproducts.com/terms-of-service .
Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by email, or certified mail, return receipt requested, to the address set forth below.
8173 S. Quemoy Cir.
Aurora, CO 80016
Attn: John Williams
Client agrees that it shall defend, indemnify, save and hold Freestone harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against Freestone, its agents, its Clients, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Freestone against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Freestone’s server or services; (2) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement, (4) any defective products sold to Client from Freestone’s server, (5) PCI compliance and (5) any action taken by Freestone, its agents or employees which causes a site or server to malfunction or halt service.
Limitation of Liability
Client UNDERSTANDS AND AGREES THAT FREESTONE, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF FREESTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE FREESTONE’S SERVICES, RELIANCE ON FREESTONE’S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF FREESTONE’S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH FREESTONE’S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO FREESTONE’S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO FREESTONE’S SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall FREESTONE be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning. FREESTONE’S full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to FREESTONE.
Tort Claims and Other Claims
Client waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against Freestone, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission. Client further agrees that it may only bring claims against Freestone in Client’s individual capacity and not as a member of a class.
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision the remainder of this Agreement shall remain valid and enforceable according to its terms. The failure by Freestone to avail itself of any right or enforce any obligation of this agreement shall not be deemed to be an ongoing waiver of such right or obligation or of any other right or obligation.
This agreement shall be governed exclusively by the laws of the County of Arapahoe, State of Colorado, USA, without regard to any conflicts of law provisions thereof, as a contract entered into and performed entirely within the State of Colordo. The parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state or federal courts located in the State of Colorado, County of Arapahoe, and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non conveniens or otherwise. Should there be a breach of this provision, the non-breaching party shall be entitled to an award of attorney fees.
Freestone makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to Freestone are due at time of sale of website design and hosting services and are not contingent upon Client’s marketing of said website. Client is responsible for all marketing of Client’s website. Freestone is not responsible for marketing of Client’s website including search engine rankings. Ultimately the success or failure of the Client’s website is the responsibility of the Client. Freestone might provide services related to marketing your site and we always do our best in this regard. Due to the ever changing nature of the search companies (especially Google) we can not guarantee any results that you might have from efforts we perform on your behalf.
Client’s acceptance of the this terms of service is binding upon all Freestone services including the purchase of additional services or additional websites or accounts at a later date.
Hosting Services provisions:
All services provided by Freestone may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or City law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene or material protected by trade secret and other statute, and invasion of privacy.
All pornographic content and sex-related merchandising is prohibited on all Freestone servers. This includes sites that may infer sexual content or links to adult content elsewhere. Also prohibited are sites that promote any illegal activity or present content that may be damaging to Freestone’s, servers or any other server on the Internet. Links to such materials are also prohibited.
Freestone will be the sole arbiter as to what constitutes a violation of this provision and reserves the right to terminate any subscriber at any time.
Commercial Advertising – Email
Spamming, or the sending of unsolicited email, from a Freestone server or using an email address or domain that is maintained on any Freestone server is strictly prohibited. Freestone will be the sole arbiter as to what constitutes a violation of this provision. Freestone as the arbiter can elect to take any site down if in Freestone’s judgement this clause has been violated.
Freestone cannot guarantee that all email sent from it’s servers will be delivered. There are many factors that govern email delivery. Should your IP (domain) get blocked, it is the domains owner’s responsibility to resolve the issue. Freestone will help to the degree that it can to resolve such issues arising from Freestone’s or it’s Clients actions. This might include changing your IP address as needed and could result in reduced rankings on search engine sites should and IP change be required.
Ecommerce Software Ownership
Freestone provides a variety of shopping cart software (programs). Hosting client agrees that this software is the sole property of the author of the software and that client will not access, copy or redistribute such software in any way. As part of your hosting package, Freestone may have purchased an appropriate and applicable license(s) for your domain name.
The Freestone Hosting Server has not been scanned for PCI compliance. Some of the software packages that we host allow for credit card information storage however storing credit card information on an Freestone Server is strictly prohibited. The Gateway / Merchant Service providers that you use most likely stores credit card data in order to facilitate providing Client’s credit for purchase cancellations. Each Merchant Service Provider is working to insure PCI compliance in different ways. It is your responsibility to work with your Gateway/Merchant Service Provider to ensure that you meet any requirement they may set regarding your manual procedures or methods of use for software hosted on the Freestone Server. PCI Compliance scanning is a service we can provide through LiquidWeb.com at additional charge. Client’s purchasing PCI compliance scans through Freestone with LiquidWeb.com are subject to all the terms and conditions of those services which can be found on the LiquidWeb.com site.
Misuse of System Resources
Any attempt to undermine or cause harm to a server, or Client, of Freestone, is strictly prohibited. This includes, but is not limited to: using programs that consume excessive CPU time; allowing the use of mail services, mail forwarding capabilities, or autoresponders other than for the Client’s own account; resale of disk space without an appropriate reseller agreement; use of servers for backup of files unrelated to Client shopping cart site; or resale or remote access to any and all programs installed on our servers. Operation of IRC servers or IRC bots on our servers will result in an immediate suspension of service. Violations of these policies can be reported to firstname.lastname@example.org.
Cancellation can be made via email to email@example.com and there is no cancellation fee. Hosting fees paid for the current hosting month of cancellation are non-refundable. Activity which results in a suspension or deactivation of an account will result in a forfeiture of fees paid. Any suspended account must be current with their payment before reinstatement will be considered.
If your hosting invoice or an invoice for any other consulting services has not been paid by the 5th of the month we reserve the right to:
1. Discontinue access to any administrative site controls.
2. Suspend or Termination your account.
Account Suspension or Termination will result in the site being inoperable. Freestone Products is not responsible for any loss of revenue or any other harm caused by reduced Admin access, Account Suspension or Termination.
If your invoice for hosting or any other services is not paid by the 5th of the month we reserve the right to charge a $25 late fee assessed to your account. If your account is suspended there will be a $75 fee to reactivate your account/site. If your account is Termination there will be a $400 site recovery fee to reactivate the site and your account. Client agrees that if a site is Suspended or Terminated that the site once re-activated or recovered will be exactly like it was at the point of Suspension or Termination.
Client further agrees that if your account is terminate that Freestone Products has no obligation to renew the domain(s) name associate with the account. Freestone Products has no obligation to notify you prior to taking any of the action described herein.
Freestone reserves the right to refuse, cancel, or suspend service at our sole discretion for any violation of these Terms of Service.
Freestone makes every effort to insure that hosted sites stay up and running 24/7. We utilize the latest RAID technology (multiple computer hard drives of duplication of data) to minimize the possibility of loss of data. We also backup product databases nightly on the same server.
While unlikely, Client recognizes that service outage and/or loss of data is possible and that Freestone will not be responsible for any damages your business may suffer as a result.
Freestone will use reasonable efforts to maintain the quality of their web servers and network infrastructure. ALL Clients agree that all use of Freestone’s Webserver, WebHosting and Network is at their own risk. Neither Freestone, any merchant, service provider, nor other party involved in creating, producing or delivering the web pages, shall be liable for any direct, incidental, consequential, indirect, or punitive damages arising out of the use or inability to use Freestone’s Hosting service.