Bandicoot Marketing Hosting & Care Plans Terms & Conditions

Terms and Conditions – Website Hosting

Bandicoot Marketing LLC (“Service Provider”) will provide the services described in any applicable order (the “Services”) that is placed by you (the “Client”) (through our website or otherwise in writing) and accepted by Service Provider (an “Order”), subject to and conditioned on your compliance with the following Terms and Conditions.

These Terms and Conditions are subject to the terms of the applicable Order and to the Website Hosting Addendum attached hereto, each of which is incorporated herein by this reference.  The Order, these Terms and Conditions, and the Website Hosting Addendum are sometimes referenced herein collectively as the “Agreement”.

1. Interpretation

The definitions and rules of interpretation in this Section apply in this Agreement.

• Definitions:

• Bandicoot IP: all Intellectual Property Rights of the Service Provider, including without limitation all Intellectual Property Rights in any works arising in connection with the performance of the Services by the Service Provider, but excluding any Client Materials. Without limiting the generality of the foregoing, “Bandicoot IP” includes the systems and networks used to provide the Services, including all system-generated data (e.g. performance data), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing.
• Business Day: a day other than a Saturday, Sunday or public holiday when banks in Atlanta, Georgia are open for business.
• Change Control Procedures: the procedures set forth in Section 8.
• Charges: the charges in respect of the Services set forth in the applicable Order, together with any reimbursable expenses.
• Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, digitally, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
  1. identified as confidential at the time of disclosure; or
  2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
• Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry guidelines, which are applicable to the Client relating to security of network and information systems and security breach and incident reporting requirements, all as amended or updated from time to time.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, software rights, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Client Materials: the content provided to the Service Provider by the Client from time to time for incorporation in the Site.
• Services: the services to be provided by Service Provider pursuant to the applicable Order.
• Site: the website to be hosted by the Service Provider pursuant to the applicable Order.
• Site Software: any third party software for the Site developed or commissioned by the Client to be used in connection with the Services.
• Usage Data: information regarding access to or use of the Site or any of its features or functionality, including information that is collected automatically through cookies or other tracking technology, whether or not such information does or is capable of identifying a single user, account, device, or organization.
• User Information: any information that identifies a specific individual using the Site, including information: (a) from which a specific individual can be located or contacted; or (b) that identifies a specific individual's behavior on the Site.
• Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
  • Clause and schedule headings do not affect the interpretation of this Agreement.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • A reference to legislation is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time thereunder.
  • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.
  • A reference to writing or written includes fax and e-mail.

2. Warranties
   • Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
   • The Service Provider shall perform the Services with reasonable care and skill.
   • The warranty set forth in Section 2.2 shall not apply to the extent that any failure of Service Provider to substantially perform the Services is caused by any third party software, any Client Materials, any changes to the Site made by the Client or any third party, or any unauthorized use or act or omission of the Client or any third party.
   • EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT.
   • THE SERVICE PROVIDER DOES NOT WARRANT THAT:
     • THE CLIENT'S USE OF THE SERVICES OR THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE;
     • THE SERVICES OR THE SITE WILL BE FREE FROM VULNERABILITIES; OR
     • THE SERVICES OR THE SITE WILL COMPLY WITH ANY HEIGHTENED CYBERSECURITY REQUIREMENTS.

3. Limitation of Remedies and Liability
   • Nothing in this Agreement shall operate to exclude or limit either party's liability to the extent such liability cannot be excluded or limited under applicable law.
   • IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE SERVICE PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, AVAILABILITY, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS.
   • IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR OWED BY THE CLIENT TO SERVICE PROVIDER DURING THE THREE MONTHS PRECEDING THE APPLICABLE CLAIM.
   • IF AN SLA IS INCLUDED IN THE ORDER, THE SLA SETS OUT THE CLIENT’S SOLE REMEDIES FOR DOWNTIME, UNAVAILABILITY, OR OTHER SLA FAILURES.
4. Intellectual property rights
   • The Client retains ownership of all Client Materials and the Site (excluding the Bandicoot IP), and the Client grants the Service Provider, its affiliates and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Client Materials and the Site to the extent necessary or appropriate for the Service Provider to perform its obligations under this Agreement.
   • The Service Provider hereby grants to the Client a non-exclusive, non-transferable, royalty-free license to use applicable Bandicoot IP solely to the extent necessary for the Client to access and use the Services. Subject to such license, the Service Provider shall retain ownership of, and all rights, titles and interests in and to, the Bandicoot IP.
   • Except for the express rights granted herein, nether party grants any other licenses, express or implied, to any of its respective intellectual property including software, services, or products. The Service Provider may solicit and Site users may provide feedback about the Services. Except to the limited extent any such feedback contains any of the Client’s Confidential Information, the Service Provider is free to use and disclose such feedback for any purpose without an accounting to the Client or any other person, and the Service Provider shall own all right, title, and interest in and to such feedback along with any changes, modifications, or upgrades the Service Provider makes to its products or services and any new products or services that the Service Provider develops using such feedback.
   • The Client shall indemnify the Service Provider against all damages, losses and expenses arising as a result of any action or claim that the Client Materials infringe the Intellectual Property Rights of a third party.
   • The indemnities described in this Section 4 are subject to the following conditions:
     • the indemnified party promptly notifies the indemnifier in writing of the action or claim;
     • the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
     • the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
     • the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
   • The indemnities described in this Section 4 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
5. Site Content
   • The Client shall ensure that the Client Materials and any Site Software do not infringe any applicable laws, regulations or third party rights (including material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or violent acts, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”). The Client shall indemnify the Service Provider against all damages, losses and expenses arising as a result of any action or claim that the Client Materials, Site Software, or any other material posted or linked to the Site constitutes Inappropriate Content.
   • The Service Provider shall include only Client Materials on the Site. The Client acknowledges that the Service Provider has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Site. The Service Provider reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Service Provider shall notify the Client if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
   • The Service Provider may include a statement substantively similar to "[Designed/Powered] by Bandicoot Marketing LLC" on the home page of the Site in a form to be agreed.
6. Term and termination
   • These Terms and Conditions shall be in effect for so long as any Order is in effect and shall continue, unless terminated earlier in accordance with this Section 6, until the first anniversary of the date on which all Orders have terminated in accordance with their terms.
   • Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
     • the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than five (5) Business Days after being notified in writing to make such payment;
     • the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of ten (10) Business Days after being notified in writing to do so;
     • the other party suspends, or threatens to suspend, payment of its debts or becomes insolvent or admits inability to pay its debts generally as they become due;
     • the other party becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law that is not fully stayed within seven (7) Business Days or is not dismissed or vacated within forty-five (45) days after filing;
     • the other party is dissolved or liquidated or takes any corporate action for such purpose;
     • the other party makes a general assignment for the benefit of creditors; or
     • the other party has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   • In the event that the Client desires to terminate this Agreement as a result of a modification notice pursuant to Section 15.2, the Client may deliver 30 days prior written notice of such termination to the Service Provider; provided, that if the Service Provider provides notice to the Client within such 30 day period that the applicable modification will not apply to this Agreement, then the termination notice will be null and void, and this Agreement will continue unmodified in full force and effect.
   • On termination of this Agreement by the Service Provider pursuant to Section 6.2, all Services provided and any licenses granted by the Service Provider under this Agreement shall terminate immediately.
   • On expiry or termination of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
7. Force Majeure

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (excluding payment obligations) if such delay or failure result from events, circumstances or causes beyond its reasonable control (including any industrial dispute affecting any third party, governmental regulations, pandemic, fire, flood, disaster, civil riot or war). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for [90 days], the party not affected may terminate this Agreement by giving 10 days prior written notice to the affected party.

8. Confidentiality
   • Each party undertakes that it shall not at any time during the Term of this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any Confidential Information of the other party or any of its affiliates, except with the prior written consent of such party or as otherwise permitted by Section 8.2.
   • Each party may disclose the other party's confidential information:
     • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement (“Representatives”). Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Section 8; and
     • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
   • No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement; provided, that a party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party notice of such disclosure.
   • The provisions of this Section shall not apply to any Confidential Information that:
     • is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
     • was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
     • was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
     • the parties agree in writing is not confidential or may be disclosed; or
     • is developed by or for the receiving party independently of the information disclosed by the disclosing party.

9. Notices
   • All notices, requests, consents, claims, demands, waivers, and other communications hereunder, other than routine communications having no legal effect, shall be in writing and addressed to the parties as set forth in any Order (or as otherwise specified by a party in a notice given in accordance with this Section).
   • Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); or (c) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day, if sent after normal business hours of the recipient.
10. Announcements

Except as expressly provided herein, no party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this Agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

11. Assignment

Neither party shall assign, transfer, or pledge any of its rights and obligations under this Agreement, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, the Service Provider may engage third parties to provide or enable elements of the Services, provided that the Service Provider is responsible for the performance of such third parties.

12. Entire Agreement
    • This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set forth in this Agreement.
13. Third party rights

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or does confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

14. Amendment; Waiver
    • This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party The substantive terms contained in the Client’s purchase order, order confirmation, notice of receipt, vendor registration portal, or any other transactional document, form, or notice provided by the Client shall be void and without effect, even where the Client’s customary business practices require a showing of assent to such terms by the Service Provider such as by signature or reference in an invoice.
    • Notwithstanding Section 14.1, the Service Provider may update these Terms and Conditions and any addenda hereto from time to time in its sole discretion; the current version may be found at https://bandicootmarketing.com/terms. In the event of any material change, the Service Provider will provide the Client with written notice, and the Client’s continued use of the Services following such notice will constitute acceptance of the same. If the Client disagrees with the terms of any change, the Client may terminate the Agreement in accordance with Section 6.3.
    • No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Rights and remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

16. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

17. Governing Law; Jurisdiction

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of Georgia, in each case located in the County of Cobb, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

18. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 

WEBSITE HOSTING ADDENDUM

The following additional terms and conditions apply to website hosting Services:

1. Client Responsibilities
   • The Client acknowledges that the Service Provider's ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the specifications provided by the Client and any Client Materials, information and data the Client provides to the Service Provider. Accordingly, the Client shall provide the Service Provider with access to, and use of, all Client Materials, information, data and documentation reasonably required by the Service Provider for the performance by the Service Provider of its obligations under this Agreement. The Client shall be responsible for the accuracy and completeness of such materials and information.
   • The Client shall use the Services solely for the intended purpose in accordance with the Agreement. The Client shall comply with the Bandicoot Hosting Acceptable Use Policy (the “AUP”), as may be updated by the Service Provider from time to time. The current version of the AUP can be accessed at https://wpengine.com/legal/aup/.
   • The Service Provider shall not be liable for any delays in implementing the Services resulting from the Client’s failure to fulfil any of its obligations hereunder. The Service Provider reserves the right to invoice the Client for any additional expenses reasonably incurred by the Service Provider as a result of such delays.
2. Charges and Payment
   • Upon commencement of the Services pursuant to the Order (and at such other times as may be described in the Order), the Client shall pay to the Service Provider the Charges set forth in in the Order. The Client hereby authorizes the Service Provider to charge to the Client’s authorized credit card or other account all Charges due on a monthly basis. The Client further acknowledges and agrees that the Service Provider’s obligation to deliver the Services is expressly conditioned upon the Service Provider’s receipt of payment in full for the Services.
   • Unless otherwise stated in the Order, all Charges set forth herein are exclusive of taxes.
   • The Client shall reimburse the Service Provider for documented, out-of-pocket travel, lodging and similar expenses reasonably incurred by the Service Provider in performing the Services, subject to the Client’s prior approval.
   • If the Client becomes overdue on any Charges, the Service Provider may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend provision of the Services, and (iii) terminate the Agreement in accordance with Section 6.2 of the Terms and Conditions. The Client will be responsible for any charges associated with collection efforts related to unpaid Charges.
3. Term and Termination
   • Each Order shall commence upon such Order’s initial acceptance by Service Provider (the “Effective Date”) and shall continue, unless terminated earlier in accordance with Section 3.2 below or Section 6 of the Terms and Conditions, for the duration of the term stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, unless either party has notified the other party of its intent not to renew the Order, the term of the Order shall be deemed to renew automatically on a month-to-month or annual basis, as applicable.
   • Either party may terminate an Order for any reason with 30 days prior written notice to the other party hereto. In the event the Client has paid Charges under an Order for any period extending beyond the effective date of such termination, the Client will be entitled to a pro-rated refund of Charges paid for such period.
   • On expiration or any termination of an Order, the Services will cease, including without limitation any third party licenses, plug-ins, optimizations or enhancements provided in connection with the Services. The Client acknowledges and agrees that the Service Provider will not be responsible for any adverse impact to the Site or its operation resulting from the termination of Services.
4. Data Protection
   • Service Provider shall employ commercially reasonable security measures to protect against unauthorized access to, or use of the Site.
   • The Service Provider will not be responsible for any loss or harm suffered by the Client resulting from a security incident. The Client will be responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with the Client’s own security requirements. The Client agrees to configure its use of the Services in such a way as to maintain the security of the Services and the Service Provider’s Should the Service Provider determine that its network has been accessed in an unauthorized manner, and that such unauthorized access impacts the Services, the Service Provider agrees to notify the Client as soon as reasonably practicable after the Service Provider has investigated the unauthorized access and fulfilled its legal obligations. The Client agrees to notify the Service Provider should the Client become aware of any unauthorized access to the Services.
   • Where applicable under the data privacy laws of the European Union and its member states, where the Service Provider is the data processor for personal data collected by the Client, the Service Provider will use such personal data only as instructed by the Client or required by law, and not for any other purpose.
   • Services provided may include access to third-party software, and the data collected by such third-party software will be stored and processed by the plugin's provider. By installing and utilizing this software, the Client consents to the storage and processing of such data for the purpose of providing the Services hereunder.
   • The Service Provider acknowledges that all User Information and Usage Data constitute Client’s Material; provided, that Service Provider may (a) use User Information and Usage Data as necessary to perform the Services, and (b) use and disclose aggregated Usage Data (excluding any User Information) for its own business purposes, provided that any person receiving access to such Usage Data is either (i) bound by confidentiality obligations similar to those set forth in this Agreement, or (ii) given only Usage Data aggregated with other website data without disclosing the Client’s identity

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Document name: Bandicoot Marketing Hosting & Care Plans Terms & Conditions

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