Terms of Service Hosting and Tech
WEB HOSTING AND TECHNICAL SUPPORT SERVICES TERMS OF SERVICE
Pitch Black Media, LLC, a Michigan limited liability company, with its principal place of business at 1938 Burdette st. Suite 103 Ferndale, MI 48220 (“Pitch Black”) provides, as a limited service, website hosting services under Pitch Black’s hosting account with a third-party provider, as well as certain technical support services, as more fully described herein.
THESE TERMS OF SERVICE, TOGETHER WITH THE PITCH BLACK PRIVACY AND COOKIE POLICY, CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN PITCH BLACK AND YOU (THE “AGREEMENT”) IN CONNECTION WITH THE PROVIDING OF THE SERVICES IDENTIFIED BELOW. IT IS THEREFORE VERY IMPORTANT THAT YOU AND/OR YOUR AUTHORIZED USERS REVIEW THESE TERMS OF USE AND POLICIES IN THEIR ENTIRETY.
PITCH BLACK MAY, IN ITS SOLE DISCRETION, MODIFY THE TERMS OF SERVICE OR ITS PRIVACY AND COOKIE POLICY WITH ADVANCE WRITTEN NOTICE TO YOU OF AT LEAST THIRTY (30) DAYS. IN SUCH EVENT, YOU SHALL HAVE THE OPTION TO TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS CONTAINED HEREIN. IF YOU AND/OR YOUR USERS CONTINUE TO UTILIZE THE WEBSITES OR THE SERVICES, AS DEFINED HEREIN, YOU AND/OR YOUR USERS SHALL BE DEEMED TO HAVE AGREED TO SUCH CHANGES.
Overview of Services.
1.1 Purpose. The purpose of this Agreement is to permit you, as the owner of certain websites provider with whom Pitch Black maintains an account (the “Hosting Vendor”) and to authorize and request Pitch Black manage those Hosting Services, while providing limited technical support as may be necessary to host Your Site(s) (the “Pitch Black Services”), as further defined in Paragraph 1.2.
1.2 Pitch Black Services.
1.2.1 Hosting Management Services. In consideration of the full payment of the Monthly Subscription Fees, identified below, Pitch Black will arrange for and maintain the Hosting Services with the Hosting Vendor, which is currently WPengine. Pitch Black may, in its sole discretion and upon notice to you, elect to change Hosting Vendors as may be appropriate.
1.2.2 Limited Technical Support Included. From time to time, it may be necessary for certain plug-ins to be updated or other routine maintenance to ensure operation of Your Site. As part of the Pitch Black Services, Pitch Black will provide limited technical support services of up to one (1) hour a month. Any technical support or maintenance that may be required above and beyond one (1) hour per month may be requested by you; however, such services shall be invoiced at Pitch Black’s standard hourly rates.
1.3 Additional Services. You may request Additional Services from Pitch Black without invalidating this Agreement; however, a separate written agreement between the parties shall be required. Additional Services include, but are not limited to, website design, branding development, programming, social media management, Google Analytics, Google My Business, etc.
1.4 Term of the Agreement. The initial term of this Agreement shall be one month (the “Initial Term”). Upon conclusion of the Initial Term or Renewal Terms, as defined herein, this Agreement shall automatically renew for one month (the “Renewal Term(s)”, collectively, the “Term(s)”) unless or until this Agreement is terminated pursuant to the terms contained herein.
- Payment Terms.
2.1 Hosting and Technical Support Fees. You agree to pay the monthly fees identified in your registration for the Hosting Services and Pitch Black Services (the “Monthly Fee(s)”). In addition to the Monthly Fees, you shall be responsible for the full and timely payment of all invoices issued in connection with Additional Services, which, unless otherwise stated in the invoice, shall be due NET15.
2.2 Non-Payment. In addition to such other remedies as Pitch Black may have at law, equity or as set forth in this Agreement, Pitch Black shall have the right to suspend and/or terminate the Pitch Black Services and suspend or terminate the Hosting Services immediately, without notice, if you fail to timely pay any Monthly Fee within within ten (10) days of the date in which such is due.
2.3 Credit Card Authorization. You shall be responsible for providing accurate billing information including credit card information for third party-program management and payment processing. You authorize Pitch Black and its third-party payment processors to charge the Monthly Fee(s) to the credit card provided on a monthly basis throughout the Term of this Agreement, as defined in Paragraph 1.4. You agree that you will update your credit card information if the credit card expires or otherwise becomes deactivated during the Term. Pitch Black may charge an administrative fee of Thirty-Five Dollars ($35.00) in the event that a payment is returned as NSF or otherwise rejected.
2.4 Third-Party Program Management and Payment Processors. Pitch Black may utilize both a third-party program management software to manage entry of billing information and authorizations of credit card payment as well as a third-party payment processor to complete transactions. Currently, Pitch Black utilizes Chargebee.com as its third-party program manager for payments and Stripe for transaction processing. By registering your account and supplying the credit card information, you agree to the terms of use governing the use of Chargebee.com and Stripe including, without limitation, their respective privacy policies, which may be reviewed at the URL identified below.
Chargebee.com
https://www.chargebee.com/privacy/
Stripe
You understand and agree that Chargebee.com and Stripe may modify, update or amend the terms of use and privacy policies applicable to their respective services.You will be alerted to such changes in accordance with the then existing policies employed by Chargebee.com and/or Stripe.
Pitch Black reserves the right, in its sole discretion, to change or eliminate the third-party program management software and change the third-party payment processor with prior written notice to you.
2.5 NO REFUNDS FOR THIRD-PARTY ACTIONS. YOU UNDERSTAND THAT NO REFUNDS OR CREDITS SHALL BE GIVEN DUE TO INTERRUPTIONS IN THE HOSTING SERVICES DUE TO THE ACTIONS, ERRORS OR OMISSIONS OF THIRD PARTIES OR THE ALTERATIONS, MODIFICATIONS, UPDATES OR RELATED TO CHANGES TO THIRD-PARTY PLATFORMS, TECHNOLOGY OR SOFTWARE, WHICH PITCH BLACK HAS NO CONTROL OVER.
- Your Obligations.
3.1 Warranty and Representations. You represent and warrant that any material, written text, copy, photographs, images, designs, software, plug-ins, technology or other content you have provided, displayed, incorporated or added into Your Site (“Your Content”) you own the rights to or have all necessary permissions, licenses or authorizations to use, publish or otherwise display on Your iIte and that Your Content shall not infringe on the third-party rights of others.
3.2 Risks Associated with Your Site. You are responsible for and assume the risk of any issues or problems resulting from the content, accuracy, completeness, competence or consistency of all of your computer facilities, programs, files, documentation, test data, content, sample output or other information, resources and personnel supplied by you.
3.3 Timely Cooperation. You will make available in a timely manner for Pitch Black’s use, at no charge to Pitch Black, all technical data, computer facilities, programs, files, documentation, test data, sample output, content or other information, resources and personnel required by Pitch Black to perform the Services.
3.4 Compliance with Third-Party Vendor Terms of Use and Applicable Law. At all times, you agree to act in accordance with all agreements, terms of service, terms and conditions associated with or required by any third-party program, service or vendor that is utilized and/or incorporated into the technology necessary to perform the Hosting Services including those of the Hosting Vendor, which may be found here: https://wpengine.com/legal/terms-of-service/. You further agree that, during the Term, you will maintain, operate and display Your Site and Your Content in compliance with all applicable local, state and federal laws and regulations.
3.5 Compliance and Agreement with Pitch Black Privacy and Cookie Policy. You and any users you authorize acknowledge and agree to the terms set forth in the Pitch Black Privacy and Cookie Policy, as may be updated with notice to you, which may be found here: https://gofindable.com/privacy-policy/.
- Limited Warranty and Remedy; Disclaimer of Warranties.
4.1 Limited Warranty for Pitch Black Services only. Pitch Black represents and warrants only that it will perform the Pitch Black Services in a timely, professional and workmanlike manner consistent with industry practices and applicable law. This limited warranty extends only to the Pitch Black Services and not to the services provided by third parties, including the Hosting Services.
4.2 No Liability for Third-Party Vendor Errors or Omissions. You understand and agree that Your Site and the Hosting Services may be impacted by the actions, errors or omissions of third parties or alterations, modifications, updates or related changes to third party hosting platforms and software, including those made by the Hosting Vendor, none of which Pitch Black has control over. These issues may cause, among other things, an interruption to the Hosting Services or their effectiveness. You agree and do so forever waive and release Pitch Black from any claim, demand, loss, damages or injury including, without limitation, business interruption, damage to business reputation or lost profits which you may sustain arising out of the actions of third-party vendors.
4.2 DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU, ON YOUR OWN BEHALF, ON BEHALF OF YOUR SUCCESSORS AND AFFILIATES, UNDERSTAND AND AGREE THAT PITCH BLACK IS PROVIDING THE PITCH BLACK SERVICES ON AN “AS-IS”, “WHERE-IS” BASIS, AND EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES, OTHER THAN THOSE EXPRESSLY STATED HEREIN. FURTHER, PITCH BLACK DISCLAIMS ANY WARRANTIES WHATSOEVER WITH RESPECT TO THE HOSTING SERVICES PROVIDED BY THE HOSTING VENDOR, OVER WHOM PITCH BLACK HAS NO CONTROL. SUCH DISCLAIMERS INCLUDES THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PITCH BLACK FURTHER DISCLAIMS ANY WARRANTIES REGARDING A PARTICULAR RESULT OR OUTCOME.
- LIMITATION OF LIABILITY AND DAMAGES.
5.1 NO CONSEQUENTIAL DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF YOUR AFFILIATES AND SUCCESSORS, UNDERSTAND AND AGREE THAT IN NO EVENT WILL PITCH BLACK BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, COVER, REPLACEMENT COSTS, SAVINGS, REVENUE, USE OR BUSINESS INTERRUPTION THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, THE PITCH BLACK SERVICES OR THE HOSTING SERVICES, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE, EVEN IF PITCH BLACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2 LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES WILL PITCH BLACK’S AGGREGATE LIABILITY EXCEED THE AMOUNT OF MONTHLY FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
- Indemnification.
6.1 Indemnification of Pitch Black. You on your own behalf and on behalf of your affiliates and successors, agree to and shall indemnify, defend and hold harmless from any claims, demands, losses, damages or costs (including attorney fees and costs) threatened or sustained by Pitch Black which arise from or relates to (i) Your Content; (ii) the operation of Your Site(s) including, without limitation, compliance with any government regulations, statutes, laws or ordinances, false or misleading representations, or invasion of privacy rights of third parties; (iii) breach of this Agreement, including any warranties and representations; (iv) infringement of the intellectual property rights of third parties; (v) the violation of any terms of use, privacy or cookie policies required by any third-party marketing platform or software; (vi) the operation of your business or operations; (vii) the collection, recording, use and licenses to or of visitor data by you through your website; or (viii) the collection, maintenance and confidentiality of Personally Identifying Information by you or via Your Site.
- General Provisions.
7.1 Governing Law and Venue. This Agreement will be interpreted and enforced under the laws of the State of Michigan, without regard to conflicts of law principles. Any dispute arising out of this Agreement shall be brought in a court of competent jurisdiction having jurisdiction over Oakland County, Michigan.
7.2 Notices. Any notices required under this Agreement shall be sent in writing to the email identified in your account, and if to Pitch Black, to info@pitchblackmedia.com. Notice shall be deemed received in the case of email, when sent.
7.3 Waiver. No waiver by either Party of any default shall be deemed a waiver of prior or subsequent defaults of the same or other provisions under this Agreement.
7.4 Relationship of the Parties. In performing this Agreement, Pitch Black shall be deemed an independent contractor. Nothing hereunder shall be construed to create an employment, joint venture or partnership relationship.
7.5 Force Majeure. Neither Party will be liable for or will be considered to be in breach of or default under this Agreement as a result of the delay or failure to perform (with the exception of any payment obligation set forth herein) as a result of any causes or conditions that are beyond such Party’s reasonable control including, without limitation, acts of God, pandemic, war, strikes, outages of third-party utilities or platforms, or similar events and that such Party is unable to overcome through the exercise of commercially reasonable diligence.
7.6 No Third-Party Beneficiaries. Except as expressly stated herein, there are no intended third-Party beneficiaries to this Agreement.