Terms Of Service Agreement
Thank you for choosing Fixnode. By using our products, services and sites you agree to the following terms, conditions, policies, guidelines or amendments thereto known as the Terms of Service. Fixnode reserves the right to modify the Terms of Service without notice.
1. Use of Fixnode Products and Services
You may use any of our services, provided that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other jurisdictions. In order to access certain services, you are required to provide current and accurate identification, contact, and other information as part of the registration process. You are responsible for maintaining the confidentiality of your account information, and are responsible for all activities that occur under your account. You are solely responsible for all content on your account. You agree to immediately notify Fixnode of any unauthorized use of your account or any other breach of security. Fixnode will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your account secure.
2. Acceptable Conduct
You agree that you are responsible for maintaining your own account. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials (‘Content’) are the sole responsibility of the account from which such Content originated. Fixnode reserves the right, but does not assume the responsibility, to monitor or review any Content on Fixnode services. You agree that you are responsible for the conduct of all users of your account and any Content that is created, transmitted, stored, or displayed by, from, or within your account while using Fixnode services and for any consequences thereof. You agree to use Fixnode services only for purposes that are legal, proper and in accordance with the Terms of Service and any applicable policies or guidelines. You agree that you will not engage in any activity that interferes with or disrupts Fixnode services or servers or networks connected to Fixnode services.
3. Prohibited Usage
You agree that any of the below activities are considered prohibited usage and will result in immediate account suspension or cancellation without a refund and the possibility that Fixnode will impose fees; and/or pursue civil remedies without providing advance notice.
Misuse of System Resources: Misuse of system resources, including but not limited to employing programs that consume excessive CPU time (outside of reserved CPU partition), network capacity, disk IO or storage space.
Unsolicited Communications: Sending unsolicited bulk messages utilizing our network. Generating a significantly higher volume of outgoing e-mail than a normal user. Using a non-existent email return address. Open E-mail relaying. Sending out unsolicited email from any other network that points to a Fixnode server.
Access to Other Computers or Networks without Authorization: Attempting unauthorized and/or illegal access of computers, networks and/or accounts not belonging to party seeking access. Any act which interferes with the services of another user or network. Any act relating to the circumvention of security measures.
Other Activities viewed as Illegal or Harmful: Engaging in illegal activities or engaging in activities harmful to the operations of Fixnode or the customer.
Providing False Data on any Contract or Application: including fraudulent use of credit card numbers.
4. Account Cancellation or Suspension
Fixnode may cancel or suspend your access to Fixnode services at any time and for any reason without notice. Upon cancellation or suspension, your right to use the service will stop immediately. You may not have access to data that you stored on the service after we suspend or terminate the service. You are responsible for backing-up your data that you use with the service. If we cancel your service in its entirety without cause, we will refund to you on a pro-rata basis the amount of your payment corresponding to the portion of your service remaining right before we terminated your service.
You may terminate the service at any time by following the instructions in the Management Portal. YOU MUST DELETE YOUR OWN partition FOR SECURITY PURPOSES. As soon as you cancel the service, by deleting your partition(s), your right to use it stops immediately. You may not have access to data that you stored on the service after you terminate the service. You are responsible for backing-up your data that you use with the service. Cancellation of the service by you will not alter your obligations to pay all charges due to Fixnode at the time of cancellation.
5. Charges and Billing
You agree that Fixnode shall be permitted to charge your credit card on a monthly basis in advance of providing its services or as needed for prepayments, for your subscription fee, any applicable sales taxes, and any other charges you may incur in connection with your use of Fixnode services. The monthly subscription fee is billed in full on the first day of your paid subscription and monthly thereafter, unless and until you cancel your subscription. If your billing date lands on a day not contained in a given month, you will be billed on the last day of that month. For example, if your paid subscription began on March 31st, your next billing date would be April 30th.
Prepayments will be billed to your card within 24 hours of their receipt. Prepayments are entitled to a refund if the customer requests a cancellation during the first month of service, the remaining months (minus the cost of the first month) will be credited back to the customer’s account. Any remaining balance on a customer’s account may only be used for Fixnode services and will not be refunded.
Fixnode is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Fixnode. Currency exchange settlements will be based on agreements between you and the provider of your credit card. In addition, we do not give pro-rated refunds for unused time if cancellation is initiated during the middle of a billing cycle. We reserve the right to change our fees, but will notify you in advance of increases.
All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law. The costs of any returns if permitted will be at your expense, unless otherwise provided by applicable law.
6. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Fixnode SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE Fixnode SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (III) ANY OTHER MATTER RELATING TO Fixnode SERVICES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILTY OF Fixnode AND ANY OF ITS AGENTS, SUPPLIERS, EMPLOYEES, OR AFFILIATES IN CONNECTION WITH THE Fixnode SERVICES , UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED THREE TIMES ONE MONTHS RECURRING FEE FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM AS OF THE TIME OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO THE CLAIM.
7. Exclusions and Limitations
Nothing in this agreement is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited.
8. No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in this Terms of Service, there shall be no third party beneficiaries to the Terms of Service.
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF Fixnode SERVICES SHALL BE AT YOUR SOLE RISK. ALL SERVICES PROVIDED BY Fixnode ARE AVAILABLE AS IS WITHOUT WARRANTIES OR GUARANTESS APPLIED.
You agree to defend, indemnify and hold harmless Fixnode, LLC, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Fixnode services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that use of our services caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Fixnode services.
You agree that Fixnode may provide you with notices, including those regarding changes to the Terms of Service, by email, regular mail, or postings on Fixnode services.
12. GENERAL INFORMATION
Entire Agreement. The Terms of Service (including any policies, guidelines or amendments that may be presented to your from time to time) constitute the entire agreement between you and Fixnode and govern your use of Fixnode services, superceding any prior agreements between you and Fixnode for the use of Fixnode services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Fixnode services, affiliate services, third-party content or third-party software.
Choice of Law and Forum. The Terms of Service and the relationship between you and Fixnode shall be governed by the laws of the State of Missouri without regard to its conflict of law provisions. You and Fixnode agree to submit to the personal and exclusive jurisdiction of the courts located within the county of St. Louis, Missouri.
Waiver and Severability of Terms. The failure of Fixnode to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Fixnode services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.