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Terms Of Service

Binaryfog Terms of Service

This Terms of Service (TOS) agreement is an agreement between BinaryFog.com ("BinaryFog", "us", "we", "our") and you ("Customer", "Client",  "you", "your”, "they"). Use of any BinaryFog.com services constitutes acceptance and agreement to this Terms of Service (TOS) agreement as well as the BinaryFog.com Acceptable Use Policy (AUP) and Privacy Policy.

BinaryFog.com reserves the right to terminate this TOS for any reason or no reason. BinaryFog.com reserves the right to refuse service to anyone.

Service

The features and details of the Services governed by this TOS are described on our website at "BinaryFog.com". Throughout this TOS, the aspects of the Services provided to you by BinaryFog, are referred to together as the "BinaryFog.com." Certain parts of the Service may be provided by third party vendors. These third parties may have reserved the right to make changes, including material changes, to their products and incorporated into our Service. If a third party makes a change to its products, you may not terminate this TOS based on such a change, even if it materially affects the Service.

Contact Information

As part of providing you with the Service, you are required to provide us with accurate and up-to-date information when setting up your account, and during the course of our business relationship. We will communicate with you by e-mail about the Service from time to time. You agree to provide us with an e-mail address that is active and monitored on a daily basis. BinaryFog.com has no responsibility, or liability, for interruptions in the Services that we provide, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with valid contact information. The contact in our records is considered by us to be our customer and we will communicate with this contact as the account administrator. However, if there is any dispute, we will consider the person/entity who paid for the latest billing period of the account to be the owner of the account. If you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records accurately reflect the correct ownership and control of the Service.

Service Changes

BinaryFog.com reserves the right to amend its service offerings and add, delete, suspend, or modify the Service and Service fees at any time at its sole discretion, and reserves the right to determine whether and when any such changes apply to both existing and future customers.

Term

BinaryFog.com offers two billing cycles for hosting charges: quarterly (3 months) or annual (12 months). Customer agrees to a quarterly contract term or an annual contract term for BinaryFog.com Service. If selected, the quarterly contract is automatically renewed each anniversary quarter in perpetuity unless the Service is cancelled by the Customer or if the billing cycle is changed to the annual billing cycle. If selected, the annual contract is automatically renewed each year in perpetuity unless the Service is cancelled by the Customer or if the billing cycle is changed to the quarterly billing cycle. If the billing cycle is changed, then the contract is automatically renewed each term in perpetuity at the new billing cycle unless the Service is cancelled by the Customer or if the billing cycle is changed back.

Service Fees

The date of the initial online order for BinaryFog.com Services, will set the Account monthly anniversary date for all future billings. Some adjustments of the anniversary date will be performed should the online order date occur on the 29th, 30th, or 31st of the month. Services are provided on a prepayment basis and fees for services will be billed on the anniversary date of the billing cycle of the Service. All fees are fully earned when due and non-refundable when paid. Customer agrees that BinaryFog.com will charge all Service Fees to the credit card supplied by Customer. All payments shall be made in US Currency. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder. If applicable, all taxes will be paid by the Customer.

30 Day Money Back Guarantee

If Customer terminates this Agreement within 30 calendar days of the order's initial sign up date and they request immediate termination, they will receive a full refund of the quarterly or annual hosting Service Fees paid when setting up the account. Setup fees, new domain name registration fees, and SSL certificate fees are not refundable. If Customer requests termination at the end of the first 30 days, then there will be no refund. This Money Back Guarantee does not apply to the renewal term or plan/period changes. Customers can submit account cancellation requests through the control panel site manager and select immediate termination or termination at the end of the first 30 days.

One Time Fees

Any one time fees are due and payable at the time they are incurred and are non-refundable.

Annual Fees for Domain Name Registration, Private Whois and SSL Certificates

Certain services such as Domain Name registration, Private Whois and SSL Certificates are on an annual billing cycle which can be out-of-sync with the Service Fee anniversary date. The customer is responsible for logging into their control panel and renewing these services manually. BinaryFog.com will e-mail reminder notices to the customer regarding the renewal of these services. Customer understands that Domain Name Registration fees, Private Whois fees, and SSL certificate fees and any other like annual service fees are non-refundable.

New Domain Name Registration

Under this TOS, the Customer has the option, through the Order Form or as part of service activation within the Control Panel, to request BinaryFog.com to register a new domain name on behalf of the Customer. Customer understands and acknowledges that BinaryFog.com is not a Domain Registrar and that BinaryFog.com will register new domain names through a Domain Registrar partner selected by BinaryFog.com. Customer understands that the domain registration process requires BinaryFog.com to pass Customer Information to the Domain Registrar partner and such information may become public information. BinaryFog.com will not be responsible if a domain name is not available for any reason. BinaryFog.com will not be responsible for any infringement of any third party rights caused by its domain registration on behalf of Customer. For such new domain name registrations, Customer shall comply with the then current Domain Name Terms and Conditions posted at our current domain registrar partner's website at http://www.opensrs.com/resources/contracts/exhibita.htm, ICANN Uniform Domain Name Dispute Resolution Policy posted at http://www.icann.org/dndr/udrp/policy.htm, and Registrant Rights and Responsibilities Under the 2009 Registrar Accreditation Agreement posted at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm.

Transferring Away Domain Names

Abiding by Domain Registrar policies, you are free to move domains that were registered through BinaryFog.com to other domain registrars. A domain name unlock tool is made available in the control panel. The customer understands that unlocking a domain from our control panel is an irreversible action. Once you unlock a domain, BinaryFog.com will not renew the domain and, if you wish to keep this domain active, you must move the domain to another domain registrar of your choice.

Fraud Prevention

BinaryFog.com uses various technologies to screen orders for fraud prevention. Each order for new Service is subject to our fraud prevention screening. BinaryFog.com is not obligated to provide Service to Customer until Customers comply with all fraud prevention program requests. Any unfulfilled requests may result in account suspension and/or account cancellation. Customers may still be responsible for any Third Party Service that they may subscribe to. BinaryFog.com is not responsible, and Customer agrees to hold BinaryFog.com harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.

Refunds and Disputes

All BinaryFog.com services are non-refundable. Customers seeking to resolve any billing errors are required to inform us at sales@binaryfog.com. The Customer agrees not to issue chargebacks for any credit card payments. A chargeback of payment for services rendered will result in an additional charge of $150.

Non-Payment

All payments are due in full on the anniversary date. Failure to remit payment for services on the anniversary date is a violation of this TOS. Failure to remit payment for ten (10) consecutive days, including the anniversary date, shall result in a suspension of public access to Customer services. Failure to remit payment for services within twenty-five (25) consecutive days, including the anniversary date, shall result in termination of access to the service network and all services shall be reclaimed. All Customer files and data remaining after twenty-five (25) days of non-payment will be destroyed and unrecoverable for security and privacy reasons.

System and Network Security

Customer is prohibited from violating or attempting to violate or circumvent the security of the BinaryFog.com Network. Violations of system or network security will result in civil or criminal liability. BinaryFog.com will investigate any such violations and will cooperate with law enforcement authorities in prosecuting any Customer who is involved in such violations.

Remedy Action

BinaryFog.com may take remedy action with or without notice, which may result in the following: a) removal of all or a portion of the Customer Content, b) disconnection or discontinuance of any and all Services, or c) termination of this Agreement in the event of i) violation of our AUP, ii) notice of violation by Customer of this TOS, iii) non-payment, or iv) chargeback. Customer agrees that BinaryFog.com will have no liability to Customer due to any Remedy Action that we may take. Customer also agrees that BinaryFog.com will not provide any refunds of any fees paid by Customer prior to Remedy Action. In the event of Remedy Action against Spamming Activities or Internet Abuse, BinaryFog.com will charge the customer a $500.00 clean up fee.

Termination for Violation

We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we decide to exercise these rights, nor will you receive a refund of any Fees.

Use of the Services

Your use of the Services must be reasonable and you may not place excessive burdens on our servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you excess fees, to the extent that they exceed the use of the Service of similarly situated customers. You understand that disk space, bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Reaching these capacity numbers on a regular basis may result our need to place restrictions on your use of the Service.

When an Account is terminated or cancelled, all files and data will be destroyed and unrecoverable for security and privacy reasons. BinaryFog.com has no responsibility to forward e-mail, or other communications, for you once your Account is closed and you will no longer have access to the control panel. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.

BinaryFog.com Intellectual Property

BinaryFog.com grants to Customer a non-exclusive, non-transferable, royalty-free license, during the term of this Agreement, to use BinaryFog.com Technology solely for the purpose of accessing and using the Services. Customer may not use the BinaryFog.com Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from BinaryFog.com to Customer any BinaryFog.com Technology, and all rights, titles and interests in and to the BinaryFog.com Technology shall remain solely with BinaryFog.com. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the BinaryFog.com Technology. BinaryFog.com's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of BinaryFog.com. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of BinaryFog.com.

Independent Contractor

BinaryFog.com and Customer are independent contractors. Nothing contained in the TOS places BinaryFog.com and Customer in the relationship of principal, agent, partner or joint ventures. Neither party may represent itself as having any authority to make contracts or enter into any agreements in the name of the other party.

Feedback

Any feedback, data, answers, questions, comments, suggestions, idea or the like which Customer sends to BinaryFog.com relating to the Services will be treated as being non-confidential and non-proprietary. BinaryFog.com may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

Disclaimer of Warranty

Customer agrees to use all Services and any information obtained through or from BinaryFog.com, at Customer's own risk. Customer acknowledges and agrees that BinaryFog.com exercises no control over, and accepts no responsibility for, the content of the information passing through BinaryFog.com's host computers, network, or the Internet. THE SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF BinaryFog.com, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, DIRECTORS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE ("BinaryFog.com 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 BinaryFog.com PROVIDES. NO BinaryFog.com PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY 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. BinaryFog.com 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 USERS VIA THE SERVICES PROVIDED BY BinaryFog.com. NO ADVICE OR WRITTEN INFORMATION GIVEN BY ANY BinaryFog.com PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.

Limitation of Liability

Customer agrees that no BinaryFog.com Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to BinaryFog.com at the time) which may exist in the Services or BinaryFog.com's equipment used to provide the Services.

Under no circumstances, including negligence, shall any BinaryFog.com Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its users, or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if BinaryFog.com has been advised of the possibility of such damages.

No BinaryFog.com Person shall be liable to Customer, any of its users, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to BinaryFog.com's records, programs, equipment, or services.

IN NO EVENT WILL BinaryFog.com'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 ACTUAL SERVICE FEES PAID TO BinaryFog.com BY CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

BinaryFog.com CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. BinaryFog.com 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.

Customer understands, acknowledges and agrees that if BinaryFog.com takes any remedy action under this Agreement because of an action of Customer or its website users, Customer agrees that BinaryFog.com shall have no liability to Customer due to such remedy action by BinaryFog.com.

The terms of this section shall survive any termination of this Agreement.

Force Majeure

Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, acts of government or other legal order, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

Reciprocal

We each warrant to the other that: (i) we have the power, authority and legal right to enter into this TOS; and (ii) we have the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.

Assignment

This TOS may be assigned by BinaryFog.com. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.

No Waiver

No waiver of rights under this TOS, or any other BinaryFog.com policy shall constitute a subsequent waiver of this or any other right under this TOS.

Entire Agreement and Severability

This Agreement represents the entire agreement between the parties, and supersedes all previous agreements. All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect. Customer hereby represents that they are either, an individual entering this Agreement for their personal use and is of legal age to execute this Agreement, or a corporation, limited partnership or other legal entity, validly existing under the laws of the state of its organization and the person acting on behalf of Customer is authorized to execute this Agreement on behalf of Customer.

Last Update: January 6, 2015