Web Hosting Policy

THIS CONTAINS TERMS AND CONDITIONS REGARDING CUSTOMER’S RIGHTS AND REMEDIES FOR ACCESSING AND USING COMPANY’S WEBSITE HOSTING SERVICES.

1. Agreement. These Web Hosting Terms of Service (“Web Hosting TOS”) are an agreement between eLime Design Studio. (“Company”) and the party (“Customer”) set forth in the related order form, which is incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the “Order Form”) and applies to Web Hosting ordered by Customer (collectively, the “Web Hosting Services”). By accessing and/or using the Web Hosting Services Customer signifies that Customer has read, understands, acknowledges and agrees to be bound by these Web Hosting TOS, along with Company’s Universal Terms of Service Agreement (“Universal Terms”) www.elimedesign.com/policies, Acceptable Use Policy (“AUP”) www.elimedesign.com/policies  and Privacy Policy (“Privacy Policy”) www.elimedesign.com/policies all of which are incorporated herein by reference. Any capitalized words not specifically defined herein shall have the meaning(s) set forth in the Universal Terms. In the event of a conflict between the provisions of the Universal Terms, AUP or Privacy Policy and the provisions of these Web Hosting TOS, the provisions of these Web Hosting TOS shall control.
2. Modifications.
   
   1. Company may, in its sole and absolute discretion, at any time, change or modify these Web Hosting TOS.
   2. Customer’s access of and/or use of the Web Hosting Services after such changes or modifications have been made shall constitute Customer’s acceptance of these Web Hosting TOS as of the “Last Revised Date” stated above. If Customer does not agree to be bound by these Web Hosting TOS as of the “Last Revised Date”, Customer should not access or use or continue to access or use the Web Hosting Services.
   3. Company may (but is not obligated) occasionally notify Customer of changes or modifications to these Web Hosting TOS by electronic mail. It is therefore important that Customer keep the Account information accurate and current. Company assumes no liability or responsibility for Customer’s failure to receive an electronic mail notification if such failure results from an inaccurate Account information.
   4. Company may terminate, as determined in Company’s sole and absolute discretion, Customer’s access or use of these Web Hosting TOS for any violation or breach or threatened violation or breach by Customer of any of the terms of the Agreements or the Web Hosting Services.
   5. COMPANY RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THE Web Hosting SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME, WITH OR WITHOUT NOTICE.
3. Services.
   1. Web Hosting. Web hosting plans include Shared Business Hosting, WordPress Hosting, and Reseller plans. Each of these plans place Customer Content within one or more of Company’s servers. Each Customer is given a unique domain name system (“DNS”) identifier, which translates domain names to IP addresses to allow Internet browsers to load Internet resources. Hardware and software resources may be shared between customers on the same Company servers.
      
      1. While Company may offer unlimited disk space & bandwidth, the purpose of the hosting account is to host websites. Using a hosting account primarily for online file storage or archiving electronic files is prohibited. eLime Hosting’s Shared Hosting plans are shared hosting environments, so to ensure fast & reliable service to all of our clients, accounts that adversely affect server or network performance must correct these issues or will be asked to upgrade hosting plans.
   2. Hosting Back-up. Customer is expected and encouraged to maintain backup copies of their own data. Company performs internal disaster recovery backups and assumes no liability as to the availability or completeness of the data backups. Customer may submit a Technical Support ticket if data needs to be restored. Customer will be charged $50.00 per hour to restore data.Acceptable Use Policy and Content

4. 1. Under this Agreement and Policies, Customer shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed at www.elimedesign.com/policies or under the Policies section of Company’s Site, and which is incorporated in this Agreement by this reference.
   2. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Services (collectively, the “Customer Content”). Customer Content also includes (but is not limited to) content of Customer’s website(s), customer(s) and/or user(s).
   3. Some of the features of Company’s Site or the Services may allow Users to view, post, publish, share, store, or manage ideas, opinions, recommendations, or advice via forum posts, literary, artistic, musical, or other content (“User Content”). All content submitted through an Account is considered User Content. By posting or publishing User Content to Company’s Site or through the Services, Customer represents and warrants to Company that (i) Customer has all necessary rights to distribute User Content via Company’s Site or via the Services, either because Customer is the author of the User Content and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
   4. Customer understands and agrees that the content posted and/or stored on the Customer’s website(s) will not contain adult content, pornography nudity of any kind, and/or the written word of a sexual nature.
   5. Customer understands and agrees that posting and/or storing of material that contains hate speech is not permitted
   6. Customer understands and agrees that all Customer Content posted and/or stored on Customer’s website(s) will not be used for committing or promoting any type of illegal activity including, but not limited to, fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, “warez,” “hacking”/”cracking”/”key generators,” gambling, obscene material, or be used in the traffic of illegal materials.
   7. Customer is not permitted to use ad-servers, attempts to circumvent quota system owned by “nobody,” certain podcasting sites, use of torrent software, proxies, excessive resource usage or ‘core dumping’, attempting to circumvent any of our or other sites security policies, procedures or systems.
   8. Customer shall be solely responsible for any and all of Customer Content or User Content that is submitted through an Account, and the consequences of, and requirements for, distributing it.
   9. Customer shall be solely responsible and will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on Company’s network, or denial of service, deliberate or not, caused by forging address resolution protocol (“ARP”) queries or replies or by configuring internet protocol addresses into Customer’s hardware which were not assigned to Customer’s Account. The foregoing actions may result in disconnection of the Services. Any loss of functionality of the Account related to the foregoing actions will be and remain the Customer’s sole responsibility. If the foregoing actions are deemed by Company to not warrant an immediate and drastic action, Customer will be contacted.
   10. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event Company takes corrective action due to a violation of this Agreement or the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer’s customers due to any corrective action that Company may take (including, without limitation, disconnection of the Services).
5. Data Protection.
   
   1. The Services may involve the submission, collection and/or use of personally identifying or identifiable information about Users, Customer and Customer own customers (“Data”) in the course of Customer use of these Services (“Covered Services”). The Data, for the purpose of this Section, excludes any User Content. Company’s Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide Customer contractual assurance that Company has robust mechanisms to ensure the transfer of Customer Data, including transfers of Customer Data from the European Economic Area (“EEA”) to the Covered Services, meets with compliance under applicable data privacy laws. The DPA can be viewed on the Company website.
   2. For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), Customer (and Customer applicable affiliates) are considered the Data Controller/Data Exporter (as such terms are defined in the DPA), and Customer acceptance of the terms of service governing Covered Services at the time of purchase of any Covered Services will also be treated as Customer acknowledgment and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If Customer wishes to print, sign and return a physical copy of the DPA, please send an email request to cs@elimedesign.com.
   3. General Data Protection Regulation (“GDPR”) Company has made clear the opt-out procedure for sharing of personal data, implemented security measures to safeguard the personal data that we do keep, minimized the data collected to that which is relevant to the operation of our business and the customer’s site, made available the data collected in an easily accessible way to the customers to whom it belongs, as well as provide an easy method by which they can request that their personal data be purged from our system. Company’s GDPR information can be located on the Company website.
6. Company as Reseller or Licensor. Company may act only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.

7. Internet Protocol (IP) Address Ownership. If Company assigns Customer an Internet Protocol (“IP”) address for Customer’s use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. At all times, Company shall own and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Any IP numbers which remain unused after a 30-day period will be subject to reassignment by Company, as determined in its sole discretion. In such event, no prior notice will be given to Customer, however, Company may email Customer to inform of the action taken. Any services performed and/or costs incurred in reclaiming any unused IP numbers which have been registered as nameservers will be billed to Customer at Company’s then current administrative services rates. Dedicated IP addresses are available for $10.00 per month by submitting a request to support@elimedesign.com.

8. Caching. Customer expressly grants to Company a license to cache the entirety of the Customer Content, including content supplied by Users or to third parties, and agrees that such caching is not an infringement of any of Customer, User or third party’s intellectual property rights.

9. CPU Usage. Customer agrees that Customer shall not use excessive amounts, as defined by Company, of CPU processing on any of Company’s servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.

10. Bandwidth and Disk Usage. Company shall provide Customer with a large volume of bandwidth, disk space, and other resources as defined in the Service offering. The Services are intended for reasonable, as determined by the Company, business use only. Any activity that results in excessive usage inconsistent with reasonable usage patterns is strictly prohibited. Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the “Agreed Usage”). These allotments are optimized and dedicated towards serving the Customer Content. Customer shall not use any bandwidth and/or disk usage for materials other than the Customer Content. Company will monitor Customer’s bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of Customer Content and/or other materials or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules, and regulations regarding Customer Content.

11. Availability of the Services. Subject to the terms and conditions this Agreement and the Policies, Company shall use commercially reasonable efforts to attempt to provide Company’s Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis, however, such up-time is not a guarantee. Customer understands, acknowledges and agrees that from time to time Company’s Site and the Services may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions, periodic maintenance, repairs or replacements that Company undertakes from time to time or causes beyond Company’s reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. Customer understands, acknowledges and agrees that Company has no control over the availability of Company’s Site or the Services on a continuous or uninterrupted basis and that Company assumes no liability to Customer or any other party with regard thereto.

12. Monitoring of Content; Reservation of Rights.
    
    1. Company does not pre-screen Customer Content or User Content. However, Company reserves the right (but undertakes no duty) to do so and decide whether any item of Customer Content or User Content is appropriate and/or complies with this Agreement. Company may remove any item of Customer Content or User Content and/or terminate a Customer or User’s access to Company’s Site or the Services posting or publishing any material in violation of this Agreement or the Policies, as determined by Company in its sole and absolute discretion, at any time and without prior notice. Company may also terminate a Customer or User’s access to Company’s Site or the Services if Company has reason to believe the Customer or User is a repeat offender. If Company terminates Customer or User access to Company’s Site or the Services, Company may, in its sole and absolute discretion, remove and destroy any data and files stored by Customer or User on its servers.
    2. Company expressly reserves the right to copy (but is under no obligation to do so), backup (but is under no obligation to do so), store (but is under no obligation to do so), replicate (but is under no obligation to do so), deny, cancel, terminate, suspend, lock, delete, or modify access to or control of any Account or the Services for any reason, as determined by Company in its sole and absolute discretion, including but not limited to the following: (i) to correct mistakes made by Company in offering or delivering any Service; (ii) to protect the integrity and stability of, and correct mistakes made by, any affiliate or vendor of Company; (iii) to assist with Company fraud and abuse detection and prevention efforts; (iv) to comply with court orders against Customer or User; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit; (viii) to avoid any civil or criminal liability on the part of Company, its officers, directors, employees and agents, as well as Company’s affiliates, including, but not limited to, instances where Customer has sued or threatened to sue Company; or (ix) to respond to complaints related in any way to an Account or Customer Content that could result in damage to Company’s business, operations or reputation.

13. No Spam; Liquidated Damages
    
    1. Company does not tolerate the transmission of unsolicited commercial email, unsolicited bulk email or unsolicited facsimiles, which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications (collectively, “Spam”). Spam can also include, but is not limited to, the following: email messages; newsgroup postings; Windows or Mac system messages; pop-up messages (aka “adware” or “spyware” messages); instant messages; online chat room advertisements; guestbook or website forum postings; facsimile solicitations or text/SMS messages.
    2. Nothing in this Agreement is intended to grant any right to transmit or send email to, or through, Company’s network. Email sent, or caused to be sent, to or through Company’s network may not (i) use or contain invalid or forged headers, (ii) contain invalid or non-existent domain names, (iii) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path, (iv) use other means of deceptive addressing, (v) use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party, (vi) or contain false or misleading information in the subject line or otherwise contain false or misleading content.
    3. Company monitors all traffic to and from Company web servers for indications of Spamming and maintain a Spam abuse complaint center to register allegations of Spam abuse. Customers suspected to be using Company products and services for the purpose of sending Spam are fully investigated. If Company determines there is a problem with Spam, Company will take the appropriate action to resolve the situation.
    4. Company does not authorize the harvesting, mining or collection of e-mail addresses or other information from or through Company’snetwork. Company does not permit or authorize others to use Company’snetwork to collect, compile or obtain any information about its customers or subscribers, including but not limited to subscriber e-mail addresses, which are Company’s confidential and proprietary information. Use of Company’s network is also subject to this Agreement, Company’sAcceptable Use Policy, Policy Statement, and other notices contain in the Legal section of Company’s website(s).
    5. Company will not allow Company servers and services to be used for the purposes described above. In order to use Company products and services, Customer must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but Customer must also abide by these No Spam terms and conditions. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include, but not limited to, a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by Company, conclusive proof of opt-in will be required for an email address or fax numbers.
    6. If Company determines the Account, Products, or Services in question are being used in association with Spam, Company may re-direct, suspend, or cancel any Account or other applicable Products or Services. In such event, at Company’s election, Company may require Customer to respond by email to Company stating that Customer will cease to send Spam and/or have Spam sent on Customer’s behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated. 
    7. Company encourages all customers and recipients of email generated from Company products and services to report suspected Spam. Suspected abuse can be reported to Company via the legal section of Company’s Website.
    8. Customer agrees that Company may immediately terminate (without notification) any Account which Company believes, in Company sole and absolute discretion, is transmitting or is otherwise connected with any Spam.
    9. In the event Spam is transmitted, Company reserves the right to suspend and/or cancel permanently any and all Services provided to Customer or a User without any notification. Customer acknowledges and understands that Spam will disrupt Company’s business. If a Customer is in violation of any term or condition of this Spam section, the Acceptable Use Policy, or the relevant terms related to Spam under this Agreement or uses of the Services to disrupt or, in the Company’s sole judgment, could disrupt the Company’s business operations, the Company reserves the right to charge such Customer an administrative fee equal to $16,000.00 USD (as per the US CAN-SPAM ACT of 2003 or US FTC rules and regulations) for each piece of Spam transmitted from or otherwise connected with Customer’s Account.
    10. Unauthorized use of Company’s network in connection with the transmission of Spam may result in civil and criminal penalties against the sender and those assisting the sender.
    11. Customers are prohibited from maintaining open email relays. Any claim of ignorance or lack of knowledge of the presence or operation of an open email relay is not and will not be considered an acceptable excuse for such conduct.
    12. Customers are prohibited from providing hosting services for websites that have been included in Spam.

14. Domain Name Dispute Claims. Please refer to the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) for a concern or dispute concerning a domain name, located at http://www.icann.org/udrp/udrp.htm.

15. Network Security and Mandatory Updates. If Customer or the Account is the initiator or target of a denial of service attack that adversely affects Company’s or a third party’s network, Company will terminate Customer’s account without warning and Customer will be held responsible for any charges that may result from this action. Activities that attract denial of service attacks are expressly prohibited. Customers involved in these activities will be immediately terminated upon Company’s knowledge of such actions. These activities include, but are not limited to the selling of shell accounts, and involvement with file sharing, internet relay chat or similar conduct of any kind. This prohibition is for the protection of our customer base as a whole; these kinds of services tend to attract attacks that have the potential to degrade service for all of our customers. Company will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate systems or network security may incur criminal or civil liability. Company reserves the right to charge up to $500.00 USD per complaint to investigate. From time-to-time, Company notifies customers of any exploit Company deem potentially catastrophic. For an exploit to be considered catastrophic, it must be attacking widely deployed applications that are in use on a majority of servers. For example, but not limited to, software related to DNS, APACHE, and SENDMAIL. The security notification will be sent via Company’s customer subscribed mailing list, with a subject line of “Mandatory Security Update.” It will provide a synopsis of the exploit, what is effected, and probable repercussions associated with failure to update. In addition, the email will provide a link for customers to download updated software or fixes, or patches, and directions on installing it. Customers are responsible for following the instructions in all ” Mandatory Security Update” within 24 hours from their release. To ensure the security of the Account and to maintain Company’s network integrity, if 24 hours past notification the software at issue has not been updated or patched, Company reserves the right to apply all necessary updates, fixes any other obvious security holes Company may find, and bill the Customer’s Account at Customer’s then applicable hourly support rate without further notice or Customer approval. Customers are responsible for maintaining their contact information in the Account such that Customer’s email address is always reachable even in the event of their Account being shut down.

16. ACCOUNT LIMITATIONS
    
    1. Migration of Servers. Customer acknowledges and agrees that as a normal course of business, it may be necessary for Company to migrate servers which may result in assigned dedicated IPs to be assigned to a different IP number. Company does not warrant that Customer will be able to consistently maintain any given IP numbers.

1. Free Products Credits. Upon termination of the Hosting Services, all free products provided as part of the Hosting Services will be cancelled or revoked.

1. Only a single WordPress installation is allowed per website.

17. Website/Server Content. Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script or application that causes a degradation in the performance of our server or network environments.

18. cPanel. In the event Customer add cPanel to your server, Customer agree to be bound by the cPanel EULA, which is hereby incorporated by reference.

19. cPanel Fair Usage Policy: This policy is a guide to understand the intended uses of our Services, and to prevent exploitation and abuse of the unlimited features offered in our plans. VPS and dedicated hosting with cPanel offers unlimited number of accounts. Although Company do not wish to set a specific limit, as a guideline, a threshold of 100 accounts will be considered normal, reasonable use. Company evaluate your usage in comparison to typical levels of usage engaged in by other users. In the event that Customer exceed this threshold, GoDaddy may in its sole and absolute discretion, assess additional usage charges for accounts in excess of the threshold or restrict additional accounts from being created. Where possible, GoDaddy will provide a notice of your usage in excess of the normal use.

20. PROVISIONS SPECIFIC TO MANAGED SSL
    
    1. If Customer purchased Managed SSL and are using an SSL certificate on a website hosted by us, Company will generate and securely store a corresponding private key. For security reasons, at no time will Company release your private key, even per your request. If Customer wish to export your SSL certificate for use on a non-GoDaddy server, request a re-key of the SSL certificate – your current SSL certificate will become invalid and Company will issue a new certificate for use on your non-GoDaddy server.

1. Company will automatically validate, issue and install the new certificate every two years for subscribing customers using our hosting products. Customers using 3rd party hosting products will be required to reinstall the new certificate after Company automatically validates and issues a new certificate. Company will alert customers when to take action via the product dashboard and email.

1. Customers are permitted to assign a representative the authority to (1) sign and submit, or approve a certificate request on your behalf, (2) sign and submit a Subscriber Agreement on your behalf and/or (iii) to acknowledge the Terms of Use on your behalf, provided Customer acknowledge and agree that Customers are and will remain subject to and bound by all terms and conditions of this Agreement.

21. SERVICE UPTIME GUARANTEE: After your purchase of a Shared Hosting account, Customer may contact Customer Support to have your physical uptime checked no more than once within a 30-day period. If your hosting account has a physical downtime that is not within the 99.999% uptime Customer may receive a partial credit on your account. Approval of the credit is at the discretion of eLime Design Studio and eLime Hosting, dependent upon the results of the check performed by eLime Design Studio and eLime Hosting Customer Support. Third-party monitoring service reports may not be used for justification due to a variety of factors, including the monitor’s network capacity and reliability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. If an approved downtime event is reported following a check Customer request, Customer must request your credit within one (1) week of receiving notification of such a report.
    Scheduled downtime for server maintenance is not regarded as downtime for purposes of relevance for this credit, nor is downtime caused by unavoidable acts of God, nor by third-party digital or physical attacks on InMotion Hosting servers and data centers, such as direct denial of service (DDoS) attacks, or other forms of hacking. Interruptions in service caused by Customer from custom scripting, coding or the installation of third-party applications are likewise not eligible to be counted against downtime. eLime Design Studio and eLime Hosting reserves the right to measure uptime on its own at any time.

    To request a credit, please create a ticket with our support department or email support@elimedesign.com with justification. Uptime guarantees apply to any paid in full hosting account.

22. THIRD PARTY SOFTWARE: “Third Party Software” means any software or application developed and owned by a third party provider that Company may contract with from time to time.

23. Operating Software. Some Hosting Services may be operated in different versions of Linux® environments.

24. Disclaimer of Warranty. Customer agrees to use all Services and any information obtained through or from Company, at Customer’s own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “COMPANY PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES 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, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.

25. Limited Warranty.
    
    1. Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees prorated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
    2. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

26. Limitation of Liability.
    
    1. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
    2. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
    3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
    4. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 28shall not apply to Customer’s indemnification obligations.
    5. Notwithstanding anything to the contrary in this Agreement, Company’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose, or $5,000, whichever is less.
    6. Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one of its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
    7. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with. The terms of this section shall survive any termination of this Agreement.

If Customer has any questions about this Agreement, please contact Company by email at support@elimedesign.com.