Thank you for choosing Factor 360, Inc. for your online services.
The following terms govern all of the online services and products that we offer. Please read over these latest terms to familiarize yourself with them and adhere to the requirements as they pertain to your account with us. If you have any questions, please contact us for clarification.
Factor 360 Terms of Service
This Services Agreement (the “Agreement”) represents the general agreement and understanding between Factor 360, Inc. (Factor360), a South Dakota corporation, and their “Customers”, unless otherwise set forth in a written Agreement between the parties.
1. SERVICE. Factor360 provides to Customers online solutions (web site hosting, web-based software as a service, cloud-based services, email, spam filtering, and other related internet based hosting). These solutions shall hereinafter collectively be referred to as the “Services”).
2. TERM OF SERVICE. This Agreement shall be in effect perpetually between the parties unless and until either party shall give to the other party written notice (in accordance with this agreement) of its intent to cancel this Agreement at least thirty (30) days in advance of their Termination Date or last day of the applicable Extension Term, as the case may be. The Initial Term and any successive Extension Terms shall collectively be referred to as the “Term”.
3. PRICING CHANGES. Factor360 shall have the right, from time to time, to revise on a service-by-service basis, any of the fees set for the Services based on market conditions. In the case of a material change in the Services, a thirty (30) day notice shall be given to the customers.
3.1 LATE PAYMENTS. Any unpaid balance over thirty (30) days shall be subject to finance charges at an annual rate of 12 percent (12%).
3.2. ATTORNEY’S FEES. Should it become necessary to take any action to collect any amount invoiced to the Client under this Section or otherwise enforce the terms of this Agreement, Client agrees to pay Factor360’s actual and reasonable attorney's fees and all reasonable costs of collection.
4. CLIENT RESPONSIBILITY.
4.1. Password Security. Client shall be responsible for undertaking measures to ensure the confidentiality of Client passwords. If a Client password is lost, stolen or otherwise compromised, Client shall promptly notify Factor360, whereupon Factor360 shall issue a replacement password to Client’s authorized representative and take such other action as may be appropriate given the circumstances.
4.2. Data Retention. As a part of Client environment implementation and provided Client has elected backup services as part of their Solution, a scheduled backup window will be determined. Should a scheduled backup fail, Factor360 will rerun the failed job until a successful backup can be obtained. During a restore of Client data, Factor360 will provide all data on the backup system that was collected during the most recent successful backup or prior as requested and available. A benchmark data restore time of 5GB per hour is agreed upon between Factor360 and Client. Backups will be reviewed by Factor360 routinely to confirm completion. Factor360 does not make any representations or warranties as to the integrity of any backup data. On rare occasions, files locked out by the operating system or database will not be backed up by the Factor360 backup system, and will require that Factor360 rerun the job to obtain a copy of any previously locked files.
4.3. Acceptable Use Policy. The Client may only use Factor360, Inc.’s Services for lawful purposes. In the event that at any given time, Factor360, Inc. reasonably believes that the Service is being used by Client in violation of any of the terms and provisions contained in this Agreement, Factor360, Inc. has the right to immediately discontinue such Service to Client without liability within two (2) business days after giving written notice to Client, which notice shall specify Factor360, Inc.’s good faith belief as to why the Service is being used in violation of this Agreement. Factor360, Inc. reserves the right to determine what constitutes net abuse in its reasonable discretion.
The following are restrictive uses and shall be cause for the immediate termination of Services, effective upon e-mail notice to Client:
4.3.1. Unauthorized distribution or copying of copyrighted software, violation of US export restrictions, embezzlement, fraud, trafficking in obscene material, drug dealing, and other illegal activities.
4.3.2. Using a non-existing e-mail return address on a commercial solicitation, spamming (sending unsolicited advertising to numerous e-mail addresses or newsgroups), trolling (posting outrageous messages to generate numerous responses, mail bombing (sending multiple messages without significant new content to the same user), subscribing someone else to a mailing list without that person’s permission, cross-posting articles to an excessive number of newsgroups, or attempting without authorization to enter into a secured computer system.
4.3.3. Tortious conduct such as posting of defamatory, libelous, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyright, or other intellectual property rights.
4.3.4. The Client expressly understands and agrees that illegal Adult-oriented Websites featuring nudity and acts of a sexual nature are expressly prohibited. Factor360, Inc. reserves the right to immediately remove any such unauthorized Websites without notice and discontinue service to Client without notice or liability for actual, compensatory or consequential damages to Client for the interruption in service.
4.3.5. Any action on the part of or Site Content maintained by Client or its customers that results in Factor360, Inc. receiving a subpoena or similar document demand from any legal or governmental authority due to unlawful practice or Site Content shall be cause for the immediate termination of the Service and this Agreement.
4.4. Rights of Factor 360, Inc. Factor360, Inc. has no obligation to monitor the Site Content, but reserves the right in its sole discretion to do so.
4.5 Client’s use of the Factor 360, Inc. Software is subject to the following: Client will not, and will not permit others to, (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Factor360, Inc. Software; (b) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Factor 360, Inc. Software or Client’s right to use the Factor360, Inc. Software; or (c) remove any proprietary notices or labels on the Factor360, Inc. Software. All rights not expressly granted to Client are reserved by Factor 360, Inc. or Factor 360, Inc.’s licensors.
4.6 Marketing. Client consents to Factor 360, Inc.’s inclusion of Client's name on a general list of Factor 360, Inc.'s customers used for marketing and promotional purposes.
5. REPRESENTATIONS AND WARRANTIES.
Factor 360, Inc. will:
a) utilize commercially reasonable efforts to maintain acceptable performance of the contracted Services.
b) provide the Services in conformance with the specifications set forth in Client Orders.
Service(s) means those services requested by you and provided by Factor360 as set forth on an Order. Order means the Service(s) typically described in a quote, contract, invoice, or other document presented to you by Factor360.
Hosting. While Factor 360, Inc. strives to exceed the industry standard of 99.9% uptime, Client agrees that Factor360 has limited control over the availability of Services on a continuous or uninterrupted basis. Client agrees that from time to time the Services may be inaccessible or inoperable for causes beyond Factor360, Inc.’s reasonable control, including, without limitation the conditions of force majeure, and for maintenance. Factor360, Inc. does not guarantee the integrity of data stored or transmitted via Client’s via the Internet. Factor360, Inc. shall not be liable for the inadvertent disclosure of, or corruption or erasure of data transmitted or received or stored on Client’s system, unless caused by the gross negligence or willful misconduct of Factor360, Inc. employees or anyone under Factor360, Inc.’s reasonable control.
LIMITATION OF REMEDIES
In no event shall Factor 360, Inc. be liable for any special, indirect or consequential damages, whether for breach of contract or warranty, negligence or other tort, on any type of strict liability theory or any other theory of liability.
Without limiting the generality of the foregoing, Factor 360, Inc. specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, facilities, services, labor or salaries, downtime, shutdown or slowdown costs, spoilage or materials, or any other type of economic loss. All the limitations and disclaimers contained in the paragraph and in the rest of this contract shall apply to claims of Customer's clients or any third party asserted by Customer against Factor 360, Inc. for indemnity or contribution, as well as direct claims of Customer against Factor 360, Inc..
Customer shall indemnify Factor 360, Inc. against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys fees and other costs of defending any action) which Factor 360, Inc. may incur as a result of any claim by Customer or other arising out of or in connection with the products and/or service sold hereunder and based on (a) any modification of the products; (b) product or service defects not proved to have been caused solely by Factor 360, Inc.'s negligence; or (c) in the event of resale, by virtue of Customer's failure to properly disclaim all implied warranties and consequential damages to subsequent purchasers.
LIMITATION OF LIABILITY AND DAMAGE LIMIT.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR OTHER CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR ANY ACTION UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT DURING THE TERM OF THIS AGREEMENT.
These Terms and Conditions supersede any other agreement between you and Factor 360, Inc. to the extent necessary to resolve any inconsistency or ambiguity between them. These Terms and Conditions shall be governed in all respects by the laws of South Dakota, USA, without giving effect to its rules relating to conflicts of laws.