These Terms and Conditions, together with any terms which were clicked-through in the process of purchasing services (an “Order”) set forth the terms and conditions pursuant to which Callisto Digital Inc. (“Provider”) will provide the Services (“Agreement”) to the account owner (“Client”). The Agreement is effective on the Order date.

 

1. Acceptance

By accepting this Agreement and using Provider’s Managed Services (“Services”), Client agrees to be bound by all the terms and conditions of this Agreement.

 

2. Provision of Services

(a) Provider agrees to provide Client with services relating to their website or business, which may include WordPress website support & maintenance, WordPress website hosting,  website design & development, domain name management, email capability, regular theme and plugin updates, automated backup and snapshot recovery, daily security scanning, SMS marketing, email marketing, social media marketing and such additional services as may be provided by Provider from time to time.

(b) Provider may enable Client usage of Provider licensed WordPress plugins while Client utilizes Provider server management and WordPress management services. Provider reserves the right to discontinue licensing of any WordPress plugin at any time at its sole discretion. Provider will also disable licensing of any WordPress plugins upon Termination of this Agreement. Client understands this may fundamentally alter the functionality of their website and they will be responsible for obtaining new licensing of any WordPress plugins used under Provider’s license(s).

(c) Provider retains copyright to any content created by Provider until Client pays the invoice for the work performed to create said content.

(d) Provider reserves the right to change or modify the features of Client’s service plan from time to time on thirty (30) days written or e-mailed notice to Client. Client’s continued use of Provider’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by the Provider’s modification of the terms and conditions of this Agreement.

 

3. Agreement Term

The initial term of this Agreement shall commence on the Order date and shall continue through either: one (1) month, three (3) months or twelve (12) months, depending on the payment option selected by Client during the Order process. After the initial term, this Agreement shall be automatically renewed for successive monthly (if the monthly payment option is selected), quarterly (if the quarterly payment option is selected) or annual (if the annual payment option is selected) periods until terminated by one of the parties as provided in this agreement.

 

4. Additional Services

Provider offers a number of services designed to assist you in the use and operation of your server and software. These services are provided at an additional cost, and pursuant to various contract addenda. We may terminate this Agreement, at our sole and exclusive option, should your requests for support exceed those typically experienced by us for similarly situated Clients.

Provider may use third-parties to provide products and services to you. A portion of related Services may be terminated or modified upon the termination of the underlying agreement between Provider and the vendor providing third-party provided services or if Provider determines that the Services no longer meet Provider’s specifications or standards. Provider may, at its sole discretion, replace these related Services with other Services that provide a comparable value or cease providing them to you. Your Fees will be adjusted should Provider make such a change.

 

5. Backup and Restore

You must backup your data. If we provide backup services to you, we will provide you with the backed up copy of your data. Backups are intended for disaster recovery purposes only and will otherwise be provided on a best efforts basis for a Fee. Backups consist of data only.

In the event of a server failure, we will restore your server to the operating condition in which it was provided to you on the Effective Date. This is our sole and exclusive obligation. It is your obligation to restore your website and any configuration of services on your server.

 

6. Domain Names

During the Order process you are offered various options to administer your domain name. Domain name registration is completed by a third party. We are not responsible for any acts of the registrar. If you chose to have us named as your administrative contact, we will re-register your domain name prior to its expiration, at our then current registration fee. It is your sole responsibility to notify Provider no less than thirty (30) days prior to expiration of your Domain name if you do not wish to renew the registration. Provider reserves the right to renew Domain names up to thirty days prior to their expiration. You will be responsible for all registration and renewal fees at the time of registration or renewal. Registration and renewal services cannot be canceled or refunded once processed by Provider. In order to register your domain name, you must provide us with a credit card, or the credit card we have on file for your account must be active, and capable of being charged for the registration fee. Should your credit card be declined, for any reason, we have no responsibility to contact you regarding the expiration, and possible loss, of your domain name.

 

7. Consulting

During the Term, we may provide certain consulting services to you. These consulting services are set out on your Order Form (Consulting). Consulting is provided on a best efforts basis, and to assist you in using the Services. It is not a substitute for understanding operation of the Services. It is your obligation to ensure that your employees and/or agents have sufficient technical expertise to understand how to implement the Service. Any Consulting is governed by the terms of this Agreement.

Information you provide to us, and our responses, related to the Consulting is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products and services. We shall be the exclusive owners of this intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us.

 

8. IP Addresses

We may provide you with an IP address or addresses. We or our service provider retain ownership of these IP addresses and may change them at any time. Upon termination of this Agreement, you will not have the ability to transfer these addresses. These addresses may not be assigned or transferred, and are recycled by us or our service providers on termination of your use of the Service. Provider may, in our sole discretion, change these addresses.

 

9. Reasonable Use

We have determined what constitutes reasonable use of the Services. These standards are based on typical Client use of our network, for similar services and products. It is your obligation to monitor the use of the Services to ensure that there are not unusual spikes and peaks in your bandwidth, disk usage or Messaging. Should your use of our network and/or products exceed the limits described above, you will incur additional charges for that use. These charges will apply regardless of whether you initiated the additional use, or it was caused by a third party.

Client and those using Services through Client (End User) will at all times comply with the then-current version of the AUP as posted on https://callisto.digital. Provider may amend the AUP from time-to-time. These amendments are effective upon posting.

Provider reserves the right to suspend access to Client’s Service should Provider believe Client’s Service is the cause of interruptions in Provider’s ability to provide services to other Clients. This suspension or termination will not relieve Client of its obligation to pay Fees for the Services. To the extent possible, given the circumstances, Provider agrees to provide Client with advance notice and the opportunity to correct the cause of the interruptions. Client acknowledges and agrees that in an effort to control SPAM Provider may use certain technologies to block incoming and outgoing email which Provider determines, in its sole discretion, may be SPAM. Provider may also, in its sole discretion, limit the number of outbound Messages Client may send in a given period of time.

 

10. Termination without Cause

(a) Client may terminate this Agreement at any time, for any reason, by contacting Provider, either by e-mail or postal mail, and requesting that Client’s account be canceled. Notice of termination is effective when received by Provider and confirmed by e-mail to Client. In the event of a cancellation by Client within ten (10) days of commencement of the initial term (the “Grace Period”), Provider will refund all amounts paid for non-usage based services with the exception of one-time charges. Usage based services may include, but are not limited to, sending SMS or e-mail messages, and time spent on Client requests. No Services rendered by Provider are eligible for a refund after the ten (10) day grace period. If Client elects the quarterly or annual payment option and later decides to terminate the Agreement, the Provider will refund payment for Recurring Fees during the unused term less any prepayment discounts. Any and all charge disputes must be reported directly to Provider within thirty (30) days of the date which the charge originally occurred. If a charge which is deemed valid by Provider under the terms of this Agreement is disputed to a financial institution by performing a charge-back, then all of the services related to the account will be suspended and the client agrees to pay an ‘Administrative Fee’ of $50 in addition to the original amount of funds which were reclaimed.

(b) Provider may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client’s contact address no less than ten (10) days prior to the service termination.

(c) If either Party terminates this Agreement, Provider will back up all Client’s current Website content, databases, and messaging contacts as an archive file, and send them to Client either as an attachment to an e-mail or via other file transfer processes.

 

11. Termination for Cause

Client agrees to abide by the terms of this Agreement and by Provider’s general use policies as set forth in this Agreement, as those policies may exist from time to time. Provider may change its use policies on thirty (30) days written notice to Client by e-mail message or postal mail. Any violation by Client of the terms of this Agreement or of Provider’s general use policies shall be grounds for immediate termination of Client’s account for cause. If Provider terminates Client’s account for a violation of this Agreement, Provider shall not be required to refund any amounts billed for the billing period in which Provider terminates Client’s services.

 

12. Payment Terms

(a) The charges for the Services are set out on the Order (“Fees”). Fees may be recurring (“Recurring Fees”), usage-based (“Usage Fees”), one-time (“One-Time Fees”), or pay-as-you-go (“PAYG Fees”). Some services may combine Recurring Fees, Usage Fees, and PAYG Fees. Fees applicable to any renewal Term will be at our then-current rates. Provider reserves the right to change or modify its charges for Client’s plan or service from time to time on thirty (30) days notice written or e-mailed to Client. Client’s continued use of Provider’s services after receipt of such a notice shall constitute Client’s acceptance of and Agreement to be bound by the Provider’s modified charges for its services. Additional charges for add-on services not included in Client’s plan will be made as mutually agreed upon. The notice period begins when Provider sends the e-mail or mails written notice to the contact address currently on file in Provider’s system, regardless of if or when Client receives or reads notification.

(b) The date your first order with Provider is placed will be your “Anniversary Date”.

(c) Recurring Fees are payable in advance on a monthly, quarterly, or annual basis according to your Anniversary Date. Provider invoices and charges Recurring Fees on the first day or each month. Client will be charged the Fees beginning on the Effective Date and renewals of Recurring Fees will be invoiced 14 days before Anniversary Date and charged automatically on the Anniversary Date for the renewal Term. The schedule of payments is set out on the Order; if no schedule is stated, Fees are due in full in advance.

(d) Usage Fees will invoiced and charged on or after the first day of the month for usage incurred during the previous month. Payment of invoice will be automatically charged upon invoice generation to Client’s payment method on file unless, at Provider’s sole discretion, Provider agrees to alternate terms.

(e) One-Time Fees and PAYG Fees will immediately generate an invoice. Payment of invoice will be automatically charged upon invoice generation to Client’s payment method on file unless, at Provider’s sole discretion, Provider agrees to alternate terms.

(f) Any charges for upgrading Client’s current services will be immediately invoiced and charged for the prorated amount remaining in the current Term.

(g) All Fees are payable in U.S. dollars and are not refundable except as provide for in the Grace Period for Recurring Fees. Fees will be collected by debiting the electronic payment method provided by Client. Client may also elect to pre-pay for services as a credit on their account. Provider reserves the right to require Client to keep a credit balance on their account to cover anticipated Usage Fees and PAYG Fees. Credit, debit, or other similar sources of payment may be debited upon invoice for Recurring Fees, Usage Fees, One-Time Fees, or PAYG Fees. Client must keep the method of payment current and able to be debited. If payment is not made by or on the due date, Provider may charge a late fee on the unpaid balance at the greater of ten dollars (10), two percent (2%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.

(h) If Client does not pay on time, Provider may also suspend or terminate the Services and terminate this Agreement. When services are suspended the Client will continue to be responsible for any Fees incurred during the suspension. In addition, Third Party Services may be forfeited. We may also send the account to collections, and add to the Fees any charges associated with collecting unpaid Fees.

 

13. Taxes

Provider shall not be liable for any taxes and other governmental fees related to purchases made by Client or from Provider’s server. Client agrees that s/he will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Client by Provider.

 

14. Materials and Products

Any material and data Client provides to Provider in connection with Services shall be in a form requiring no additional manipulation on the part of Provider. Provider shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Provider, in its sole discretion, may reject material or data that Client has placed on Provider’s servers or that Client has requested that Provider put on Provider’ servers. Provider agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Provider’s requirements. Client’s failure to amend or modify the data or material as directed by Provider within a reasonable time shall be a breach of this Agreement.

 

15. Messaging Abuse

Harassment by e-mail or text messaging (SMS or MMS) (“Messages”), whether through language, frequency, or size of messages, is prohibited. Client may not send Messages to any person who does not wish to receive it. If a recipient asks to stop receiving Messages, Client must not send that person any further Messages. Clients are explicitly prohibited from sending unsolicited bulk Messages (“junk mail” or “spam”). This includes, but is not limited to, bulk Messaging of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Clients may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such Messages. Malicious Messages, including but not limited to “mail bombing” (flooding a user or site with very large or numerous pieces of Messages) and “trolling” (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to a Messages list or removing someone else from a Messages list without that person’s permission is prohibited. Provider’s accounts or services may not be used to collect replies to Messages sent from another Internet Service Provider if those Messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement may result in immediate account termination.

 

16. Violations of Network Security

Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Provider will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:

(a) Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.

(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.

(c) Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.

(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

(e) Taking any action in order to obtain services to which the Client is not entitled.

 

17. Warranty against Unlawful Use

Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of text messaging, e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.

 

18. Liability; No Warranty; Limitation of Damages

(a) Client expressly agrees that use of Services provided by Provider is at Client’s sole risk.

(b) Provider will provide 99.95 percent uptime for its hosting servers. If uptime for Client’s hosting server falls below 99.95 percent during any given month, Provider will credit Client as follows: credits will be calculated as a percentage of the bill for the month that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability less Excused Downtime by the total number of minutes in that billing cycle. Any such credits shall be applied to future invoices. This credit shall be Client’s sole and exclusive compensation for any downtime or other unavailability of Provider’s services under this Agreement. Provider shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability of any or Provider’s services. In order to receive credits, Client must make a request in writing to Provider via Support or to Client’s account manager (if applicable) within 30 days of the event giving rise to such credits.

(c) Excused Downtime includes: scheduled outages or Force Majeure events; downtime caused by a non-standard environment, Client machine access, Client’s violation of the Agreement including the Acceptable Use Policy, Client authored code or changes to the Site or Services by parties other than Provider, or use that exceeds Client’s plan capacity; emergency maintenance (e.g. in order to apply a patch to address a security vulnerability); and maintenance that is performed from 11:00 pm to 5:00 am Eastern Standard Time.

(d) Provider, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.

(e) Provider, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to Provider’s records, programs, or services.

(f) Provider will exercise no control over the content of the information passing through Provider’s network except those controls expressly provided herein.

(g) Provider makes no warranties or representations of any kind, express or implied, for the services it is providing. Provider also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.

 

19. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights

(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Provider. These products and services are only for Client’s use in connection with Services provided to Client as outlined in this Agreement.

(b) Client expressly warrants to the Provider that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Provider servers.

 

20. Hardware, Equipment, and Software

Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Provider servers. Provider makes no representations, warranties, or assurances that Client’s equipment will be compatible with Provider Services.

 

21. Age

Client expressly represents and warrants that if it is a natural person, that Client and any person to whom Client grants access to Client’s Provider account are at least 18 years of age.

 

22. Indemnification

Client agrees to defend, indemnify, and hold Provider harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Provider, its agents, servants, 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, Client’s agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Provider against liabilities arising out of:

(a) Any liability to Provider arising by virtue of any use of Provider’s services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of text messaging, e-mail or the Internet;

 

(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;

(c) Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;

(d) Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and

(e) Any defective product which Client sold or distributed by means of Services.

Client agrees that the liability limit of Provider shall in no event be greater than the aggregate dollar amount which Client paid during the current Term of this Agreement, including any reasonable attorneys’ fees and court costs.

 

23. Attorneys’ Fees

If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.

 

24. Notice

Client agrees to keep Provider informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Provider by e-mail at support@callisto.digital or on Provider’s website located at https://callisto.digital. Failure to maintain or keep current all contact information shall be a ground for Provider to terminate Client’s account for cause.

 

25. Choice of law, jurisdiction and forum

This Agreement shall be governed by the laws of the State of Florida without regard to its choice of law rules. The parties specifically disclaim the application of the United Nations Convention for the International Sale of Goods. Federal courts located in the City of West Palm Beach, County of Palm Beach, State of Florida shall have sole and exclusive jurisdiction over this Agreement. All actions relating to this Agreement shall be brought in the appropriate federal court sitting in the district for the city set out above. The parties expressly agree that jurisdiction is proper in the court set out in this paragraph. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this AGREEMENT or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court.

 

26. Severability

In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

 

27. Waiver

No waiver by Provider of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.

 

28. Entire Agreement

This Agreement shall constitute the entire agreement between Client and Provider, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding.