User Agreement
THIS AGREEMENT ("Agreement") is entered into on the day of
purchase, between Blue Dragon Web Hosting and Design (owned by Blue Dragon Research,
LLC) with its principal place of business located at 859 E. 9th St. #F, Medford,
Oregon, 97504 and the client ("User"), and shall be effective as of the moment
the plan was purchased (the "Effective Date").
Because the domain is owned by Blue Dragon Research, LLC, this ultimately
is the entity the User is making the agreement with.
RECITALS
WHEREAS, Blue Dragon Web Hosting and Design is engaged in the business of
providing Internet web site hosting and related services;
WHEREAS, User desires to retain Blue Dragon Web Hosting and Design to
perform the services provided for in this agreement.
NOW, THEREFORE, Blue Dragon Web Hosting and Design and User agree as
follows:
1. Scope of Services
Blue Dragon Web Hosting and Design will provide the services
set forth in Exhibit A (the "Services”). Hosting services will be provided
according to the terms described in Exhibit B ("Service Level Agreement").
2. Price and Payment
User will pay Blue Dragon Web Hosting and Design for Hosting
Services according to the terms set forth in Exhibit A. User will pay (a)
hosting fees in advance, (b) fees for other goods or services as invoiced, and
(c) any security deposit as set forth in any attachment to this agreement. Blue
Dragon Web Hosting and Design may change the prices charged for the services upon
forty-five (45) days written notice to User, but such increases shall not exceed
ten percent (10%) of the rate currently being charged at that time.
The rates are bound by our 5 year price guarantee and will not increase
for a period of 5 years provided the User stays in good standing and makes their
payments on time.
3. Term and Termination
A. Hosting Services will commence on the
Effective Date of this Agreement and will extend for a period of one year and
will automatically renew from year to year thereafter, unless earlier terminated
as provided herein. User may terminate this Agreement without cause upon at
least thirty (30) days written notice to Blue Dragon Web Hosting and Design. Host may
terminate this Agreement without cause upon at least sixty (60) days written
notice to User. Either party may terminate this agreement upon written notice
for material breach, provided, however, that the terminating party has given the
other party at least fourteen (14) days written notice of and the opportunity to
cure the breach. Termination for breach will not alter or affect the terminating
party's right to exercise any other remedies for breach.
It is at the sole discretion of Blue Dragon Web Hosting and Design to determine
what is a violation.
B. If User's account is suspended due to lack
of payment, User will pay the then current reinstatement fee, in addition to all
other charges then due and payable, prior to restoration of the Services.
4. Customer Service
Blue Dragon Web Hosting and Design will provide to User
reasonable amounts of consultation via telephone and/or electronic mail in the
use of the system, but will not assist with any services that are not maintained
or controlled by Blue Dragon Web Hosting and Design.
5. User's Warranties and Obligations
A. User is responsible for providing all
equipment and/or software necessary to access the hardware and systems provided
by Blue Dragon Web Hosting and Design. User agrees to adhere to Blue Dragon Web
Hosting and Design Acceptable Use Policy, a copy of which is attached hereto and marked as
"Exhibit C" and is available online at bluedragonwebhostinganddesign.com. The
Acceptable Use Policy may be modified from time to time in Blue Dragon Web
Hosting and Design’s sole discretion. User's continued use of the Services after the
effective date of such modified Acceptable Use Policy will constitute User's
acceptance of the modified terms. Failure by User to adhere to the Acceptable
Use Policy, or any modifications thereto will constitute a material breach of
this agreement.
B. User hereby warrants to
Blue Dragon Web Hosting and Design, and agrees that during the term of this Agreement it will ensure that
(a) User is the owner or valid licensee of all data and/or content it will
upload in conjunction with the Services (the "Content"), and that User has
secured all necessary licenses, consents, permissions, waivers and releases for
the use of the Content and each element thereof, including without limitation,
all trademarks, logos, names and likenesses contained therein, without any
obligation by Blue Dragon Web Hosting and Design to pay any fees, residuals, guild
payments or other compensation of any kind to any person; (b) User's use,
publication and display of the Content will not infringe any copyright, patent,
trademark, trade secret or other proprietary or intellectual property right of
any person, or constitute a defamation, invasion of privacy or violation of any
right of publicity or any other right of any person, including, without
limitation, any contractual, statutory or common law right or any "moral right"
or similar right however denominated; (c) User will comply with all applicable
laws, rules and regulations regarding the Content and will use the services only
for lawful purposes; (d) User has used its best efforts to ensure that the
Content is and will at all times remain free of all computer viruses, worms,
Trojan horses and other type of malicious code.
C. User will cooperate fully with
Blue Dragon Web Hosting and Design in connection with Blue Dragon Web Hosting and Design performance of
the Services. User will immediately notify Blue Dragon Web Hosting and Design of any
change in User's mailing address, telephone, e-mail or other contact
information.
6. Ownership of Intellectual Property
A. User hereby grants to
Blue Dragon Web Hosting and Design a non-exclusive, royalty-free, worldwide right and license during the
term of this Agreement to do the following to the extent necessary in the
performance of Services: (a) digitize, convert, install, upload, select, order,
arrange, compile, combine, synchronize, use, reproduce, store, process,
retrieve, transmit, distribute, publish, publicly display, publicly perform and
hyperlink the Content; and (b) make archival or back-up copies of the Content.
Except for the rights expressly granted herein, Blue Dragon Web Hosting and Design does
not acquire any right, title or interest in or to the Content, all of which will
remain solely with User.
B. Any feedback, data, answers, questions,
comments, suggestions, ideas or the like that User sends to Blue Dragon Web
Hosting and Design relating to the Services will be treated as being non-confidential and
non-proprietary. Blue Dragon Web Hosting and Design may use, disclose or publish any
ideas, concepts, know-how or techniques contained in such information for any
lawful purpose.
C. Blue Dragon Web Hosting and Design trademarks,
trade names, service marks, logos, other names and marks, and related product
and service names, design marks and slogans are the sole and exclusive property
of Blue Dragon Web Hosting and Design. User will not use any of the foregoing in any
advertising, publicity or in any other commercial manner without the prior
written consent of Blue Dragon Web Hosting and Design. Blue Dragon Web Hosting and Design will
maintain and control ownership of all Internet protocol numbers and addresses
that may be assigned by Blue Dragon Web Hosting and Design to User. Blue Dragon
Web Hosting and Design may, in its sole discretion, change or remove any and all such Internet
protocol numbers and addresses.
D. Blue Dragon Web Hosting and Design hereby grants to
User a non-exclusive, non-transferable, royalty-free license, for the term of
this Agreement, to use the provided technology solely for the purpose of
accessing and using the Services. User may not use the provided technology for
any purpose other than accessing and using the Services. Except for the rights
expressly granted herein, this Agreement does not transfer from Blue Dragon Web
Hosting and Design to User any right, title or interest in and to the provided
technology, and all right, title and interest thereto will remain solely with
Blue Dragon Web Hosting and Design. User will not, directly or indirectly, reverse
engineer, decompile, disassemble or otherwise attempt to derive source code or
other trade secrets from any of the provided technology.
7. Warranty and Disclaimer
Blue Dragon Web Hosting and Design warrants the Services will
be performed in a workmanlike manner, and in conformity with generally
prevailing industry standards. User must report any material deficiencies in the
Services to Blue Dragon Web Hosting and Design in writing within ninety (90) days of
User's discovery of the deficiency. User's exclusive remedy for the breach of
the above warranty will be the re-performance of the defective services within a
commercially reasonable time, or any service credit set forth in any attachments
to this agreement. THIS WARRANTY IS EXCLUSIVE
8. Limitation of Liability
Neither party will be liable to the other for special,
indirect or consequential damages incurred or suffered by the other arising as a
result of or related to the Hosting Services, whether in contract, tort or
otherwise, even if the other has been advised of the possibility of such loss or
damages.
9. Indemnification of
Blue Dragon Web Hosting and Design
User will indemnify and hold
Blue Dragon Web Hosting and Design harmless against any claims incurred by Host
arising out of or in conjunction with User's breach of this Agreement, as well
as all reasonable costs, expenses and attorneys' fees incurred therein. Blue
Dragon Web Hosting and Design total liability under this
Agreement with respect to the Services, regardless of cause or theory of
recovery, will not exceed the total amount of fees paid by User to Blue Dragon
Web Hosting and Design during the six (6) month period prior to the date the claim
arises.
10. Confidential Information
A. All information relating to User that is
known to be confidential or proprietary, or which is clearly marked as such,
will be held in confidence by Host and will not be disclosed or used by Blue
Dragon Web Hosting and Design except to the extent that such disclosure or use is
reasonably necessary to the performance of the Services.
B. All information relating to
Blue Dragon Web Hosting and Design that is known to be confidential or proprietary, or which is clearly
marked as such, will be held in confidence by User and will not be disclosed or
used by User except to the extent that such disclosure or use is reasonably
necessary to the performance of User's duties and obligations under this
Agreement.
C. These obligations of confidentiality will
extend for a period of five years after the termination of this agreement, but
will not apply with respect to information that is independently developed by
the parties, lawfully becomes a part of the public domain, or of which the
parties gained knowledge or possession free of any confidentiality obligation.
11. Relation of Parties
The performance by Blue Dragon Web Hosting and Design of its
duties and obligations under this Agreement will be that of an independent
contractor, and nothing in this Agreement will create or imply an agency
relationship between Blue Dragon Web Hosting and Design and User, nor will this
Agreement be deemed to constitute a joint venture or partnership between the
parties.
12. Employee Solicitation/Hiring
During the period of this Agreement and for twelve (12)
months thereafter, neither party will directly or indirectly solicit or offer
employment to or hire any employee, former employee, subcontractor or former
subcontractor of the other. The terms "former employee" and "former
subcontractor" will include only those employees or subcontractors of either
party who were employed or utilized by that party within six (6) months
immediately prior to the alleged violation.
13. Non-assignment
Neither party will assign this Agreement, in whole or
in part, without the prior written consent of the other party. This Agreement
will inure to the benefit of, and be binding upon the parties hereto, together
with their respective legal representatives, successors, and assigns, as
permitted herein.
14. Arbitration
Any dispute arising under this Agreement will be
subject to binding arbitration by a single Arbitrator with the American
Arbitration Association (
15. Attorneys' Fees
If any litigation or arbitration is necessary to
enforce the terms of this Agreement, the prevailing party will be entitled to
reasonable attorneys' fees and costs.
16. Severability
If any term of this Agreement is found to be
unenforceable or contrary to law, it will be modified to the least extent
necessary to make it enforceable, and the remaining portions of this Agreement
will remain in full force and effect.
17. Force Majeure
Neither party will be held responsible for any delay or
failure in performance of any part of this Agreement to the extent that such
delay is caused by events or circumstances beyond the delayed party's reasonable
control. This includes acts of god,
weather, fire, disruptions due to third party negligence, transportation
problems, catastrophe, war, embargo, shortages of labor, shortages of materials,
or governmental restrictions.
18. No Waiver
The waiver by any party of any breach of covenant will
not be construed to be a waiver of any succeeding breach or any other covenant.
All waivers must be in writing, and signed by the party waiving its rights. This
Agreement may be modified only by a written instrument executed by authorized
representatives of the parties hereto.
19. Entire Agreement
This Agreement together with any attachments referred
to herein constitute the entire agreement between the parties with respect to
its subject matter, and supersedes all prior agreements, proposals,
negotiations, representations or communications relating to the subject matter.
Both parties acknowledge that they have not been induced to enter into this
Agreement by any representations or promises not specifically stated herein.
Blue Dragon Web Hosting and Design has made access to this
Agreement when the User signed up for web hosting services and at that time the
User has checked the box stating they have read and agree to the terms of this
agreement. However, the act of
submitting the form constitutes acceptance of the Agreement.
EXHIBIT A: SERVICES AGREEMENT
TABLE OF CONTENTS
Preamble
1.0 Provided Service
2.0 Deliverables
3.0
Times and Cost Estimates
4.0 Price and Payment
5.0 Project Organization and Personnel Requirements
6.0 Supporting Documentation
7.0 Expenses and Taxes
PREAMBLE
This Services Agreement accompanies an Agreement that has been
executed by the parties. All statements of fact contained in this Services
Agreement are subject to the terms and conditions set forth in such Agreement.
The terms and conditions set forth in the Agreement control in the event of any
inconsistency between such terms and conditions and the matters set forth in
this Services Agreement.
1.0 Provided Service
Blue Dragon Web Hosting and Design is dedicated to providing a quality web hosting
service where the package the User has purchased will be honored.
These packages may be changed at anytime by Blue Dragon Web Hosting and Design
without notice. Any services beyond
web hosting will be considered on a case-by-case basis.
2.0 Deliverables
Subject to timely payment, the deliverables described hereafter (the
"Deliverables") will be provided to User in final form upon completion of the
tasks described in this Services Agreement. Preliminary or draft versions of
these Deliverables will be made available to User for review during the course
of the Project.
3.0 Time and Cost Estimates
Service beyond web hosting will be estimated and returned to the User for
approval. When the User verbally or
otherwise agrees to the terms Blue Dragon Web Hosting and Design promises to fulfill
within the estimated the Deliverables.
4.0 Price and Payment
In addition to monthly hosting fees, Blue Dragon Web Hosting and Design is being hired
on an hourly basis to perform the Services and provide the Deliverables
according to this Services Agreement. This Services Agreement is subject to a
nonbinding estimate of total labor costs to complete this work. User accepts
that a stable scope of work is critical to achieving the price estimates.
Testing and debugging work is considered a normal part of work performed under
this Services Agreement at the rates specified. Host will maintain daily records
of hours and tasks performed, which will be submitted to User upon request. All
work schedules will be considered reasonably accurate estimates, subject to
revision. These related services do
not fall under the scope of web hosting.
Services may include the design or maintenance of a customers website,
database, or other electronic services the User has contracted Blue Dragon Web
Hosting and Design to do.
4.1 Invoices
Services will be invoiced annually or as necessary.
4.2 Payment
Payment is due fifteen (15) days after date of invoice. User may not withhold
any amounts due hereunder and Host reserves the right to cease work without
prejudice if amounts are not paid when due. Any late payment will be subject to
any costs of collection (including reasonable legal fees) and will bear interest
at the rate of one (1) percent per month or fraction thereof until paid.
5.0 Project Organization and Personnel Requirements
Each estimate will include a list of required information for Blue Dragon Web
Hosting and Design to complete the Deliverables.
If this information is not furnished there will be a hold on the time
required to complete the Deliverables.
There will also be a complete list of all tasks Blue Dragon Web Hosting
and Design has completed in order to expedite the Deliverables.
6.0 Supporting Documentation
Documentation will be provided when necessary or a link will be provided where
the documentation can be found. In
some instances procedures or documentation my be emailed to the User.
7.0 Expenses and Taxes
Prices quoted for Services do not include and User will reimburse Host for its
reasonable and necessary cost of travel and out-of-pocket costs for
photocopying, overnight courier, unusual long distance telephone and the like.
All non-local trips must be approved by User before commencing. Any applicable
sales tax is to be paid by Client.
The State of Oregon does not require sales tax for products or services.
EXHIBIT B: SERVICE LEVEL
AGREEMENT
This Service Level Agreement ("Agreement") sets forth
the details regarding the level of service and technical support that apply when
your account is in good financial standing.
1. Downtime
A. For purposes of this Agreement, a Unit of
Downtime is one period of at least one day during which access to your website
is unavailable because of problems with hardware or system software. Downtime
does not include (i) problems caused by factors outside of our reasonable
control, (ii) problems resulting from any actions or inactions by you or any
third party, (iii) problems resulting from your equipment and/or third party
equipment not within our sole control, or (iv) network unavailability during
scheduled maintenance of our network and/or web servers.
B. In any calendar month, we guarantee that
Downtime will not exceed one units of Downtime excluding, however, regularly
scheduled maintenance. Any regularly scheduled maintenance will be performed
during the hours of
C. If Downtime exceeds 1/2 Units of Downtime in
any calendar month, we will, upon your written request, credit your account (a
"Downtime Credit") in an amount equal to the pro-rata price for one (1) day of
service, for each instance of Downtime as that term is defined herein.
D. To receive Downtime Credit, you must request
such credit by sending an email to webmaster@bluedragonwebhostinganddesign.com within
seven (7) days after the occurrence of Downtime. The aggregate maximum number of
Downtime Credits to be issued for any and all instances of Downtime occurring in
a single calendar month will not exceed seven (7). Downtime Credits will be
applied upon issue of the first invoice following the request for Downtime
Credit, unless the Downtime occurs in your final month of service. In such case,
a refund for the dollar value of the Downtime Credit will be mailed to you
within thirty (30) days of the expiration of your service agreement.
2. Technical Support
A. A member of our technical support help desk
staff will be available to assist you with problems and questions regarding the
hosting services. We will supply telephone and/or email support to you regarding
the hosting services. Emails are
accepted anytime. However, our
telephone hours are subject to specific times of the day.
B. You may contact our technical support help
desk via email at webmaster@bluedragonwebhostinganddesign.com, or by telephone at
EXHIBIT C
This Acceptable Use Policy sets forth guidelines relating to the
types of content that you may upload to the web servers under your agreement
with Blue Dragon Web Hosting and Design for web hosting services (the "Services").
Blue Dragon Web Hosting and Design may remove any materials that, in its sole
discretion, may be illegal, may subject it to liability, or which may violate
this Acceptable Use Policy. Blue Dragon Web Hosting and Design will cooperate with
legal authorities in the investigation of any suspected or alleged crime or
civil wrong arising from any use of the Services. Your violation of this
Acceptable Use Policy may result in the suspension or termination of either your
access to the Services and/or your account or other actions as detailed in the
Web Hosting Agreement.
1. Acceptable Use
The following constitute violations of this Acceptable Use Policy:
A. Using the Services to transmit or post any
material that contains or contains links to nudity, pornography, adult content,
sex, or extreme violence.
B. Using the Services to transmit or post any
material that, intentionally or unintentionally, violates any applicable local,
state, national or international law, or any rules or regulations promulgated
there under.
C. Using the Services to harm, or attempt to
harm, minors in any way.
D. Using the Services to transmit or post any
material that harasses, threatens or encourages bodily harm or destruction of
property.
E. Using the Services to make fraudulent
misrepresentations or offers including but not limited to offers relating to
"pyramid schemes" and "Ponzi schemes."
F. Using the Services to access, or to attempt
to access, the accounts of others, or to penetrate, or attempt to penetrate,
security measures of Blue Dragon Web Hosting and Design or another entity's computer
software or hardware, electronic communications system or telecommunications
system, whether or not the intrusion results in the corruption or loss of data.
G. Using the Services to transmit or post any
material that infringes any copyright, trademark, patent, trade secret or other
proprietary rights of any third party, including, but not limited to, the
unauthorized copying and/or distribution of copyrighted material, the
digitization and distribution of photographs from magazines, books, music, video
or other copyrighted sources, and the unauthorized transmittal of copyrighted
software.
H. Using the Services to collect, or attempt to
collect, personal information about third parties without their knowledge or
consent.
I. Reselling the Services without the prior
written authorization of Blue Dragon Web Hosting and Design.
J. Using the Services for any activity that
adversely affects the ability of other people or systems to use the Services or
the Internet. This includes but is not limited to "denial of service" (DoS)
attacks against another network host or individual User. Interference with or
disruption of other network Users, network services or network equipment is
prohibited.
K.
Any User’s that taxes our servers an unreasonably high amount of system
resources such as bandwidth, CPU time, memory, or network resources will be
assessed an additional fee. This fee
will be assessed per situation.
Blue Dragon Web Hosting and Design is the sole arbiter as to what is an unreasonably
high amount of system resources. The
User can opt to reduce the usage to an acceptable level.
In the event a User’s account is deemed to be adversely affecting the
server or the performance of the network it will be shut down.
L.
If the User attempts to store, post, display, transmit, or make available
child pornography Blue Dragon Web Hosting and Design will immediately contact the
authorities upon the discovery of this violation.
M.
N.
Cron jobs may be permitted to run in the background in certain cases;
however, they must first be approved by Blue Dragon Web Hosting and Design.
O.
The use of IRC’s or IRC bots is not permitted by Blue Dragon Web Hosting
and Design.
P.
Because all users share bandwidth, Blue Dragon Web Hosting and Design, is not
set up to distribute multimedia or software.
If the User wishes to distribute software or multimedia on a small scale
contact Blue Dragon Web Hosting and Design.
Q.
Content of multimedia may not exceed 70% of Users disk space.
R.
Disk space is for User’s website only.
This means only the files necessary to the website.
However, the User is allowed 5 Gigabytes of overhead for storage.
S.
Email and databases may not exceed 5 Gigabytes total unless other
arrangements are made between the User and Blue Dragon Web Hosting and Design.
2. Reporting of Violations of This Acceptable Use Policy
Blue Dragon Web Hosting and Design requests that anyone who believes that
there has been a violation of this Acceptable Use Policy to immediately send an
email detailing such violation to webmaster@bluedragonwebhostinganddesign.com.
3. Revisions to This Acceptable Use Policy
Blue Dragon Web Hosting and Design may revise, amend or modify this
Acceptable Use Policy at any time and in any manner.
Disclosures
Domain names are bought from a 3rd party and are subject to their terms and conditions as well as SSL certificates.
Fees
1.
Returned checks, bank wire
payments, or credit card charge backs will be assessed a fee of $29.99 per
incident.
2.
A reactivation fee of $9.99
will be charged if a Users account has been deactivated due to non payment.
3.
The User will be charged
$19.99 if data needs to be restored from a backup.
Refunds
Blue Dragon Web Hosting and Design offers a 30 day money back guarantee. There is also a 100% satisfaction guarantee for our website design.
