Moonlight Computing, LLC
It is understood and agreed that the Estimate, when presented by the Company Representative and initialed or partially or fully paid by the Customer, along with the Terms of Services set forth herein, shall be deemed the entire agreement and understanding of the parties hereto (the “Contract”). In the event that the Estimate has not been accepted by the Customer and returned to the Company within thirty (30) days of the date of the inspection, it shall be deemed terminated by the Company.
The Company has agreed to perform the Scope of Work as set forth in the Contract and for the Contract Price outlined in the estimate. The Scope of Work as set forth in the Contract may include the services as more fully described below and are subject to any limitations as set forth herein:
Description of Web-Hosting Services.
The Customer understands and acknowledges that the Company offers a web-hosting services pursuant to which the Customer’s website will be installed and hosted on secured computers called servers (“Servers”). Customer understands and acknowledges that a specialized language communicates with the server to post the Customer’s website on the internet. Further, the Customer understands and acknowledges that the specialized language used by Moonlight are PHP scripts (“Moonlight’s Content”) which have been specially created by the Company in order to provide website functionality and special features to the Customer’s website. The Company will not disclose the Moonlight Content or provide FTP access, as this has great potential to significantly damage and impair the value of the proprietary content owned by the Company, as well as great potential to significantly damage the source code used by customers of the Company, which are stored on the Server.
By using the Company’s web-hosting services, Customer agrees that the Moonlight Content and the Server as the sole property of Moonlight Computing, LLC and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. Moonlight Content is provided to Customer “as is,” “as available” and “with all faults” for Customer’s personal, non-commercial use only for purposes of web-hosting services as provided by the Company. Moonlight Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Moonlight. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by the Company to the Customer by these Terms of Services. The Company reserves all rights not expressly granted in and to the Moonlight Content and the Server, and these Terms of Services do not transfer ownership of any of these rights.
Customer authorizes the Company to use all intellectual property and other proprietary rights in and to the Customer Content to enable inclusion and use of the Customer Content in the manner as contemplated by this Agreement. Customer hereby grants to the Company a worldwide, non-exclusive, royalty-free, irrevocable, transferable license in perpetuity to use, reproduce, distribute, prepare derivate works of, combine with other works, display and perform the Customer Content in connect with the web-hosting services as contemplated herein. The Customer’s Content shall mean “all HTML content, including, but not limited to framework, attributes, elements, styles, images, tables, media, etc.” The above licenses granted by Customer shall terminate within a reasonable time after termination of the web-hosting services; provided, however, the Company may retain (but not distribute, display or perform) copies of the Customer Content on the Server. Upon termination of the web-hosting services, the Customer reserves the right to copy any of Customer Content from the website.
The Company provides secure web-hosting services using commercially reasonable efforts to monitor the Moonlight Content and resolve all related issued. In addition, the Company provides off-site backups of Customer’s website account on a weekly basis and a self-issued certificate to provide secure website capabilities. Notwithstanding, Customer agrees and acknowledges that from time to time Customer’s website may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that the Company undertakes from time to time; or causes beyond the 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 agrees and acknowledges that the Company has not guaranteed the availability of Customer’s website on a continuous or uninterrupted basis, and that the Company assumes no liability to the Customer or any other party with regard thereto.
The Company’s web-hosting services also include general support for maintaining email accounts, training, and ongoing maintenance of the website.
All services provided by the Company may be used for lawful purposes only. The Company reserves the right to terminate Customer’s account at any time without a refund if any of the following acts occur in the opinion of the Company which shall be conclusive:
a) Abuse of the Server, whether intentional, due to improper coding, or due to excessive CPU usage that compromises shared server resources. The Company prohibits linking to or use of IRC, IRC bots (such as eggdrop), and BitchX on the Server.
b) Committing or Promoting any type of illegal activity including 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".
c) The use of the website account to traffic in illegal drugs and/or obscene materials.
d) The use of the website account to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party.
e) Publishing or creating any Customer Content that is defamatory or otherwise a violation of the law.
f) Additionally, the Company reserves the right to terminate Customer’s account if at any time Customer’s website has pornography and/or nudity of any kind, including but not limited to, adult pornography, Anime, child pornography, "adult content" and/or the written word of a sexual nature.
g) Use of ad-servers, attempts to circumvent quota system owned by 'nobody', certain podcasting or video sites, use of torrent software, proxies, excessive resource usage or 'core dumping'.
h) Attempts to circumvent any of the Company’s security policies, procedures or systems.
Customer agrees to indemnify and hold harmless the Company from any and all claims, demands, liabilities, losses, or costs, including reasonable attorneys’ fees, against the Company, its owners, agents, customers, officers, and/or employees, resulting from the Customer’s failure to strictly adhere to these Terms of Service, sale or offer to sell any product or service offered by Customer, or the infringement of any other person’s intellectual property rights in and to content delivered by or published by Customer on the website account.
Description of Website Design.
Upon request, the Company shall provide website design (and/or re-design) services to the Customer, including:
a) designing (or re-designing) HTML page format and cross-device capabilities;
b) designing (or re-designing) banners, menus, and content areas; and
c) providing administrative login;
d) providing interface for making changes;
e) providing capability for uploading images, PDF files, documents, or linking to files from the page editor.
The Company offers additional services for additional costs to create a custom webpage design: databased capabilities, including search capabilities, password protected directories, site maintenance and training, shopping cart and e-commerce support.
The Customer understands and agrees that it is the sole responsibility of the Customer to provide the Company with accurate and legally-compliant content to the Company.
Description of Web-Design and Hosting Packages and Pricing.
The Company offers a variety of web site packages to meet the wide variety of needs of Customers. Web sites are developed and constantly updated using the latest technology and techniques. An adequate amount of storage space and bandwidth is provided and security is monitored on an ongoing basis. Additional web pages, email accounts and features, disk space and bandwidth can be purchased at additional cost to the Customer.
Description of Additional Services.
a) Domain Search, Registration, and Setup. Domain names are subject to availability.
b) Database Development.
c) E-mail Set-up.
d) Promotion Assistance.
e) Logo and Graphic Design.
f) Promotional Video Production.
g) Search Engine Optimization. Search Engine Optimization services shall include:
i. Integration of Google Analytics into the website;
ii. Integration of key words into web page content;
iii. Creation of community landing pages;
iv. Creation of a site map and subsequent submission of said site map to major search engines.
Compensation for Services. The Contract Price for all services provide will be the sum total of all services set forth in the Estimate. Fifty Percent (50%) of the Contract Price is due upon the Customer’s acceptance of the Contract (i.e. signing of the Estimate). The remaining Fifty Percent (50%) of the Contract Price is due upon completion of the services requested (i.e. website design services have been performed or web-hosting service 1 year term has commenced). The Customer agrees to provide the Company with sufficient funds and accurate payment information with respect to the Contract Price as well as any other invoice payments. A financing charge of 1.25% per month (15% APR) will be applied to Invoices that are thirty (30) days past due. If an Invoice remains unpaid after 30 days, the Company may proceed to enforce its rights to collect all outstanding amounts owed to it under the Contract, including amount of services performed, late payment fees, and accrued interest. In the event that the Company is required to commence legal proceedings to collect any amount due to it under the terms of this Agreement, the Company shall be entitled to be reimbursed for its reasonable attorneys’ fees and court costs. This Contract shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to any conflicts of law provisions.
Exclusions from Liability. The Company’s performance under this Agreement shall be excused in the event of fire, explosion, flood, severe weather, accident, strike, governmental act, embargo, shortages of materials, computer system failure, war or military action, riot, civil disturbance or any other event beyond the control of the Company or which materially affects the economic basis of the agreement (“force majeure”). The Company’s performance in the event of a force majeure shall be excused for as long as the cause continues, without liability. If the force majeure continues unabated for ninety (90) consecutive days, the Company may, at its option, cancel this Agreement without liability.
Limitation of Liability. Customer agrees to limit the liability of the Company, whether arising from breach of contract, negligence, or other common law or statutory theory of recovery, or claims expenses from any cause or causes, including attorney’s fees and costs and expert witness fees and costs, so that the total aggregate liability of the Company shall not exceed $500.00, or the Company’s applicable service fee for disputed services rendered, whichever amount is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law, including but not limited to negligence, breach of contract, or any other claim whether in tort, contract or equity.