HOSTING TERMS & CONDITIONS
Updated May 1, 2024
This agreement (âAgreementâ) explains Ferguson Advertising, Inc. (âFergusonâ) general terms and conditions of using hosting-related services or products. By paying any invoice for or otherwise accessing any of the hosting-related services or products offered by Ferguson, you agree to be bound by the terms of this Agreement. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This Agreement shall become effective as of the date of (1) your electronic signature on or acceptance of this Agreement, (2) the activation of your account, (3) Fergusonâs receipt of an email from you agreeing to the purchase of services or products or (4) your receipt of an email from Ferguson confirming your purchase of services or products, whichever happens first (the âEffective Dateâ).
AGREEMENT
1. DEFINITIONS.
For the purposes of this Agreement:
1.1. “Fergusonâs Equipment” shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by Ferguson and/or Ferguson’s affiliates, agents, or assigns which provide the Ferguson Services.
1.2. “Ferguson “us,” “we,” “our” and grammatical variants thereof shall collectively refer to Ferguson Advertising, Inc., a Limited Liability Company organized and existing under the laws of the State of Indiana, United States of America, and its assigns and successors in interest.
1.3. “Ferguson Services” shall mean the products and services provided by Ferguson and/or Ferguson’s affiliates, agents, or assigns at any given time, including but not limited to web hosting, e-mail, domain registration, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time in Ferguson’s sole discretion.
1.4. “Bandwidth” shall refer to the rate of data transmission in bits per second using Ferguson’s Equipment.
1.5. “Content” shall mean the files, downloadable or otherwise, which are interpreted by a client web browser for display with or without plugins.
1.6. “Customer Service” shall refer to communication from us to you dealing with problems or questions relating to services provided by us to you.
1.7. “Designated Agent” shall mean an individual or entity that the prior registrant or new registrant explicitly authorizes to approve a change of registrant on its behalf.
1.8. “Fee” shall mean monies and other consideration you are obligated to pay to Ferguson for the right to use the Ferguson Services and Bandwidth subject to the terms and conditions of this Agreement and of the particular Ferguson Services for which you have registered, as outlined on the then-current schedule of fees.
1.9.”Fee Schedule” shall mean the fees for the Ferguson Services as communicated or provided to you by Ferguson, which may be modified at any time in Ferguson’s sole discretion pursuant to the provisions of 23.1.
1.10. “International Customers” shall mean customers residing in or accessing the Ferguson Services from outside of the United States and Canada.
1.11. “Material Change” means a non-typographical correction. The following will be considered Material Changes: a) a change to the domain name ownerâs name or organization that does not appear to be merely a typographical correction; b) any change to the domain name ownerâs name or organization that is accompanied by a change of address or phone number; and c) any change to the domain name ownerâs email address.
1.12. “Laws” shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the Ferguson Services and the laws of any provinces, states or dependencies thereof.
1.13. “Parties” shall collectively refer to Ferguson and you.
1.14. “Payment Account” shall refer to the credit card provided by you upon registration to pay for Your Services. Ferguson may add, delete, or modify the methods by which customers can pay for the Ferguson Services at any time without prior notice, in its sole discretion.
1.15. “Suspend” or “Suspension” shall include the disabling of, releasing of, disabling of, and/or placing of a registrar lock on your domain name and the cessation of transmission of data to or from Your Web Site or via Your Services.
1.16. “Technical Support” shall refer to communications from us to you dealing with problems or questions relating to technical matters involving software or services provided by us to you.
1.17. “Web Site Space” shall mean a quantity of computer storage allocation, as outlined in the program description for Your Services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising Your Web Site is stored and is accessible by Ferguson’s web server equipment.
1.18. “You”, “your” and grammatical variants thereof shall mean you the customer or consumer, designated agent, or any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.19. “Your Data” shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other Content, related to your use of the Ferguson Services and stored on or transmitted by the Ferguson Equipment.
1.20. “Your Web Site” shall mean data transmittable via the Internet by Ferguson which is stored in your Web Site Space.
1.21. “Your Services” shall mean the specific Ferguson Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract and to the fees for those Ferguson Services pursuant to the current Fee Schedule.
2. TERM AND TERMINATION.
2.1.Except as otherwise provided in this Agreement, the term of this Agreement shall begin on the Effective Date and continue until terminated by either Ferguson or you.
2.2. Except as otherwise provided herein, you or Ferguson may terminate this Agreement at any time for any reason, with or without cause, upon thirty (30) days’ written notice. Should you terminate via e-mail, you must send the termination notice using the e-mail address which you provided to Ferguson upon registration or subsequent thereto. Termination via e-mail is not effective until acknowledged by Ferguson. The cancellation request is subject to verification of ownership of the account and/or domain, as determined in Fergusonâs sole discretion. If you wish to ensure the effectiveness of your termination, you must provide Ferguson notice consistent with the notice requirements set forth in Section 18 of this Agreement.
2.3. Ferguson may suspend performance under or terminate this Agreement and cease transmission of data associated with Your Web Site immediately and without notice:
2.3.1. if Ferguson, in its sole discretion, deems that you have breached any part of this Agreement, including, without limitation, any warranty or obligation set forth in Section 8;
2.3.2. if you are abusive towards Ferguson staff in any manner;
2.3.3. if your Payment Account provider refuses payment of fees or charges or you refuse authorization for same;
2.3.4. if payment for the Ferguson Services is more than fifteen (15) days overdue; or
2.3.5. for any other lawful reason or as otherwise specified in this Agreement.
2.4. Your Payment Account provider, directly or through third-party service providers, may provide Ferguson with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under this Agreement. Should Ferguson choose, in its sole discretion, to participate in such auto-update programs, you agree that Ferguson may share your Payment Account information with such third-party providers and may update Your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or Ferguson have prior notice of same. Ferguson cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to Ferguson for your failure to do so, including for any charges that Ferguson may incur as a result of your failure to keep your payment information current. Ferguson shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
2.5. After termination, you will no longer have access to your account and Your Data, including but not limited to e-mails, log files, databases, or other data files associated with your account may be deleted. Ferguson accepts no liability for such deleted information or content.
3. SERVICE DESCRIPTION.
3.1.Subject to and conditioned upon Ferguson’s retained rights and all other terms and conditions set forth in this Agreement, Ferguson offers the Ferguson Services as soon as practicable after registration for and payment of any and all fees due. The Ferguson Services are subject to the following conditions and restrictions:
3.2. Web Hosting Services
3.2.1. Ferguson shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of Web Site Space allocated to Your Services for your non-exclusive use for the exclusive purpose of storing Your Web Site data and disseminating said data via the Internet through the use of Ferguson’s Equipment for purposes consistent with this Agreement.
3.2.2. Ferguson, either directly or through its assignee or licensee, shall provide Customer Service relating to Your Web Site consisting of replying to customer questions or complaints regarding services provided by us to you relating to Your Web Site. Ferguson is not obligated to provide any Customer Service except as specified in this Section 3. Any and all requests for additional Customer Service may be refused by Ferguson with or without reason. Any additional Customer Service which Ferguson may subsequently agree to provide to you shall be at Ferguson’s sole discretion and once commenced, may be terminated at any time by Ferguson without notice to you and without any liability to Ferguson. Notwithstanding the foregoing, Ferguson at its sole discretion may at any time alter or cease providing the Customer Service which it has agreed to provide to you relating to Your Web Site pursuant to this Agreement without any liability to Ferguson.
3.2.3. Ferguson, either directly or through its assignee or licensee, shall provide Technical Support relating to hosting of Your Web Site. Any and all requests for Technical Support may be refused by Ferguson with or without reason, in its sole discretion. Any Technical Support which Ferguson may subsequently agree to provide to you shall be at Ferguson’s sole discretion and once commenced, may be terminated at any time by Ferguson without notice to you and without any liability to Ferguson.
3.2.4. All use of Web Site Space and provision of services to you by Ferguson shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or Ferguson’s services by entering into multiple agreements.
3.2.5. Unless provided for otherwise in the specifications for Your Services, Bandwidth use, including but not limited to data retrieval from your Web Site, e-mail traffic, and downloads, which exceeds ten (10) gigabytes per month, is subject to an additional charge. Ferguson may in its sole discretion debit the Payment Account an additional fee for any use greater than ten (10) gigabytes per month. You agree that Ferguson may debit the Payment Account for usage in excess of agreed upon amounts at the rates set forth in the then-current Fee Schedule. Ferguson expressly reserves the right to amend its policy on Bandwidth use, from time to time, as it sees fit.
3.2.6. Some Ferguson Services may not be available to International Customers, and Ferguson reserves the right to alter, amend, or discontinue the provision of some or all of the Ferguson Services to International Customers in a particular market at any time in Fergusonâs sole discretion.
3.2.7. Ferguson may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name immediately and without notice, permanently remove Your Data from the Ferguson Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the relevant Laws if it is informed or otherwise believes, in its sole discretion, that Your Web Site violates the intellectual property rights of any third party or is otherwise the subject of a dispute. As more completely set forth in Sections 6, 7, and 10, you waive any and all claims you may have, now and forever, against Ferguson relating to the content, use, and operation of Your Web Site and agree to indemnify and hold harmless Ferguson from and against any such claims.
3.2.8. If Ferguson assigns you an Internet Protocol (“IP”) address for your use, you shall have no right to use that IP address except as permitted by Ferguson in its sole discretion in connection with the Services during the Term. Ferguson shall retain ownership of all IP addresses assigned to you by Ferguson, and Ferguson reserves the right to change or remove any and all such IP addresses in its sole discretion.
3.3. Domain Name Registration.
3.3.1. If you request and Ferguson agrees to register a domain name on your behalf, Ferguson will register a domain name as agreed upon between you and Ferguson, provided such domain name is available for registration. Ferguson acts only as an intermediary between you and the organization providing the domain name, and has no influence over the assignment of domain names. The registration of your domain name is subject to the terms and conditions of the registry and is also subject to the terms of the Uniform Domain Name Dispute Resolution Policy (“UDRP”). You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions of the UDRP in effect at the time of the dispute. Ferguson assumes no liability in the event the domain name is unavailable or otherwise not assigned to you, and does not warrant or guarantee that assigned domain names do not infringe the rights of third parties, or that you will retain the rights to that domain name for any period of time. Upon payment in full of any and all registration fees, Ferguson shall not own or otherwise legally control any domain name registered on your behalf. You agree that you are responsible for any and all fees and costs related to the registration of your domain name, and you authorize Ferguson to debit the Payment Account for any such fees and costs. You acknowledge and agree that in the event of termination or expiration of a domain name, Ferguson shall be the Designated Agent, commencing from the effective date of termination/expiration. Unless terminated, at the end of each term your domain name shall automatically renew for an additional term and you further authorize Ferguson to debit your Payment Account for the renewal fee associated with such renewal term and any related fees or charges. Should the Payment Account provider fail to honor such renewal fee, Ferguson may, in its sole discretion, release, cancel, or otherwise dispose of or utilize your domain name as it sees fit, with no obligation to you whatsoever. If a domain is terminated, Ferguson may delete the domain registration forty (40) days after effective date of such domain name termination. Additionally, Ferguson may, in its sole discretion, assign the domain name to another party for any and all purposes.
3.3.2. You acknowledge and agree that Ferguson or its agents, assignees or licensees may associate any data of any kind, in Ferguson’s sole discretion, with the domain name registered in association with Your Web Site or any URL incorporating said domain name until you replace such data with Your Web Site, at such times as Your Web Site is no longer available, and upon termination for any reason, for as long as Ferguson or Ferguson’s agent, assignee or licensee continue to be listed as the hosting entity with the domain name registry used to register such domain name. This paragraph shall apply to any and all web pages generated by Ferguson or its affiliates, including but not limited to 404 error pages.
3.3.3. The Customer agrees and accepts that, for reasons of security and/or in accordance with ICANN and other registry policies, Ferguson shall set domain locks under certain circumstances, including but not limited to domain name registrations, domain name transfers, and any Material Changes to domain name owner details. The Customer will nevertheless be able to remove the transfer lock in order to allow a transfer of a domain name which has been applied for by third parties.
3.3.4. You represent and warrant that your domain name does not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your domain name is otherwise in compliance with the terms of this agreement, in particular the provisions of Section 8.
3.3.5. You shall inform Ferguson of any claim or potential claim against your domain name, including but not limited to the initiation of a dispute under the UDRP, within five (5) days of notification of same. Should you lose your right to use a domain name which is used in connection with the Ferguson Services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform Ferguson immediately of the party to whom the domain name is to be transferred and you authorize Ferguson to take any and all action necessary to effect such transfer.
3.3.6. You acknowledge and agree that Ferguson may suspend, cancel, transfer or modify your domain name registration at any time, for any reason, at the Ferguson’s sole discretion. Without limiting the foregoing, Ferguson may, in its sole discretion, suspend, cancel, transfer or modify a domain name registration:
3.3.6.1. to correct mistakes made by Ferguson, another registrar, or the applicable registry administrator;
3.3.6.2. to resolve a dispute related to that domain name;
3.3.6.3. within five (5) calendar days of the creation date of that domain name registration;
3.3.6.4. if you breach this Agreement (including any applicable additional rule or policy);
3.3.6.5. if you use a domain name in connection with unlawful activity;
3.3.6.6. if Ferguson believes, in its sole discretion, that the domain name has been registered fraudulently; or
3.3.6.7. upon receipt of a court order or other notification from a court of competent jurisdiction, an arbitration award, or other legal authority requiring the suspension, cancellation, transfer or modification of your domain name registration.
3.3.7. You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any ICANN adopted policy, (iii) any registrar (including Ferguson) or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures. As more completely set forth in Sections 6, 7, and 10, you waive any and all claims you may have, now and forever, against Ferguson relating to the suspension, cancellation, transfer or modification of your domain name registration.
4. FEES.
4.1.Certain Ferguson Services are subject to set-up, service, and domain service fees, pursuant to the Fee Schedule, and by registering for such Ferguson Services you authorize Ferguson to debit your Payment Account for any and all such fees.
4.2. Fees are due in accordance with the terms of your invoice. In the event that Ferguson determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in Ferguson’s sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision.
4.3. All Fees must be paid in United States Dollars in advance of the provision of services. Ferguson will charge the Fees, and any additional fees to the Payment Account unless specifically provided otherwise. You also agree that Ferguson may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Website, including but not limited to fees for excessive bandwidth use or other surcharges for services in excess of those included within Your Services or Your Web Site. If payment in full is not received by Ferguson from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by Ferguson.
4.4. You shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts. All accounts referred to a collection agency shall be subject to an additional fee, as provided in the Fee Schedule, which must be paid in full before the account is reactivated. The fee is assessed to cover the costs associated with account reactivation.
4.5. International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversation of foreign currencies into United States Dollars. Certain Ferguson Services will not be available to International Customers until Ferguson is able to receive satisfactory confirmation from such customer’s Payment Account provider, in Ferguson’s sole discretion, that the funds will be available for debit from the International Customer’s account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
4.6. Upon cancellation of this Agreement, Fees are not refundable except as may be provided otherwise herein or unless provided otherwise by applicable local law. Ferguson may, in its sole discretion, refund other amounts as it deems necessary or advisable.
4.7. Any and all fees are subject to the terms and conditions of Fergusonâs purchase agreement with customers.
5. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES.
Receipt by Ferguson of data for storage in Web Site Space and/or transmission via Ferguson’s Equipment which are inconsistent with your warranties set forth in Section 8 herein shall not constitute an agreement by Ferguson to allow the Ferguson Services or the Ferguson Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of Ferguson’s Services or Equipment, to continue to disseminate such data.
6. NO WARRANTIES.
6.1.FERGUSON MAKES NO WARRANTIES OR REPRESENTATIONS. THE FERGUSON SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE FERGUSON SERVICES IS AT YOUR SOLE RISK. FERGUSON DOES NOT WARRANT THAT THE FERGUSON SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES FERGUSON MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE FERGUSON SERVICES. NO WARRANTY IS MADE BY FERGUSON REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND FERGUSON HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FERGUSON DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE FERGUSON SERVICES WILL BE FREE OF VIRUSES, “WORMS”, “TROJAN HORSES”, OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON’S OR ENTITY’S WEB SITE OR WEB PAGE. Ferguson specifically makes NO WARRANTY OR REPRESENTATION that Ferguson Services comply in any way with the U.S. Health Insurance Portability and Accountability Act (HIPAA) or the Americans with Disabilities Act of 1990, as amended.
6.2. THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF FERGUSONâS SERVICES OR PRODUCTS.
7. FERGUSONâS LIMITED LIABILITY.
7.1. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL FERGUSON, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE FERGUSON SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, FERGUSONâS LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, FERGUSON DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE FERGUSON SERVICES, AND FERGUSON WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE FERGUSON FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF FERGUSON FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO FERGUSON IN THE TWELVE (12) MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED TEN THOUSAND ($10,000).
7.2. The terms of this Section 7 shall otherwise survive any termination of this Agreement.
8. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
8.1. You agree and warrant that the contact information you have provided to Ferguson is complete and accurate, and you further agree to notify Ferguson within fifteen (15) days of a change to any such contact information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain, if any. You acknowledge and agree that you shall adopt the role of Designated Agent and you warrant that you either are the registered name holder or are authorized to represent the registered name holder.
8.2. You agree and warrant that your use of the Ferguson Services and Ferguson’s Equipment, and all sales and distributions, by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3), or archived copies of copyrighted works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the Ferguson Services or Ferguson Equipment, shall at all times comply with all applicable Laws.
8.3. You agree and warrant that you will neither store on nor allow to be transmitted by Ferguson’s Equipment any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors.
8.4. You agree and warrant that Your Data shall be solely for business, entertainment and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
8.5. You agree and warrant that Your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by Ferguson, in its sole discretion.
8.6. You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on Your Web Site to avoid access to, or communication of, any harmful matter or indecent communications to minors.
8.7. You agree that if, in Ferguson’s sole and exclusive judgment, Ferguson concludes that Your Web Site displays, contains or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors; then Ferguson may, without prior notice to you and in Ferguson’s sole and exclusive discretion, either remove and erase the material from Your Web Site, and/or disable public access to the material on Your Web Site, and/or cease hosting Your Web Site, without any liability of any kind to Ferguson from either you or any third party.
8.8. You agree that in the event that Ferguson is informed by any party that your domain name or any material on Your Web Site infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then Ferguson may, without prior notice to you and in Ferguson’s sole and exclusive discretion, either remove the material from Your Web Site, and/or disable public access to your domain name or the material on Your Web Site, and/or terminate this Agreement, without any liability of any kind to Ferguson from either you or any third party. As more completely set forth in Sections 6, 7 and 10, you waive any and all claims you may have, now and forever, against Ferguson relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party and agree to indemnify and hold harmless Ferguson from and against any such claims.
8.9. You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, Your Data or Content which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Ferguson Services or Ferguson’s Equipment, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Ferguson Services or Ferguson’s Equipment. Ferguson shall not be liable for any claim of unfair competition, violation of publicity or privacy, infringement of trademark, copyright, or any other intellectual property rights that is the result of your failure to have or obtain the appropriate permission to use Content when using the Ferguson Services, including but not limited to content and images on Your Web Site or used in connection with any web hosting services. It is your responsibility to ensure that any images and other Content are used in full compliance with any third-party license, these Terms and Conditions, and any applicable laws.
8.10. You agree and warrant that Your Data shall not constitute or contain or link to material which is libelous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights. You agree not to collect the personally identifiable data of any person without that person’s consent, records of which shall be maintained throughout the term of this Agreement and for three years afterward. If you collect this data through Your Web Site you shall do so only pursuant to a posted privacy policy disclosing any and all uses of such identifiable data and in compliance with applicable law.
8.11. You agree and warrant that Your Data shall not contain or link to any material which is harmful, violent, threatening, abusive or hateful.
8.12. You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using Ferguson’s Services or Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software “viruses”, “worms”, “Trojan Horses,” and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the Ferguson Equipment or Web Site or another customer’s Web Site without authorization, or use the Ferguson Services to carry out, or assist in the carrying out of, any “denial of service” attacks on any other website or internet service.
8.13. You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, newsgroup postings, IRC posting or any other form of “spamming,” “phishing,” or “mail bombing,” and Ferguson reserves the right to block mail from any source which Ferguson believes, in its sole discretion, is being used to send such unsolicited e-mail, including but not limited to open mail relays.
8.14. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Ferguson Services or Ferguson’s Equipment.
8.15. You shall at all times use Web Site Space exclusively as a conventional Web Site. You shall not use the Web Site Space or Your Services in any way which may result in an excessive load on the Ferguson Equipment, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads. Use of Web Site Space and Your Services shall be in a manner consistent with this Agreement and shall not in any way impair the functioning or operation of Ferguson’s Equipment or network. Should your use of the Ferguson Services result in an overly high load on the Ferguson Equipment, in Ferguson’s sole discretion, Ferguson may suspend your account until the cause of any such overload is determined and resolved.
8.16. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Ferguson Services and that no taxing authorities shall have any claim against Ferguson or any persons affiliated therewith for the payment of such taxes.
8.17. You represent and warrant that you are over eighteen years of age (twenty-one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
8.18. You agree to comply with all applicable Laws rules regarding online conduct and acceptable Content.
8.19. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for Ferguson Services. Residents of countries which are serviced by a Ferguson affiliate are required to contract with those Ferguson affiliates, and you represent and w arrant that you are not a resident of one of those countries.
8.20. You understand that Your Web Site may be hosted and accessed in the United States and in other countries around the world, and you agree to abide by United States law, the local laws of other jurisdictions where Your Web Site may be hosted or accessed, and any other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization; you agree that Ferguson may remove content, restrict access, or shut down your website if, in Ferguson’s discretion, Your Web Site or any of its content is not in compliance with applicable law. You further agree not to upload to your Ferguson account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
9. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT.
9.1.Ferguson reserves all rights to services markers exclusively related to its business. The trademarks, logos, and service marks displayed on Fergusonâs website, www.TheFerg.com, (âWeb Siteâ) (collectively, the “Marks”) belong Ferguson and/or its affiliates or third parties which have licensed those rights to Ferguson (“Partners”); Ferguson and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on Ferguson’s Web Site are the property of their respective owners.
9.2. Unless expressly stated otherwise on the Ferguson Web Site, you should assume that all content, images, and materials appearing on or available through this Web Site (collectively the “Ferguson Content”) are the sole property of Ferguson and/or its licensors. Both U.S. and international copyright laws and treaties protect such Ferguson Content. You may not use, reproduce, display, or sell any Ferguson Content without Ferguson’s prior written consent. You may not link to any page within Ferguson’s Web Site or frame any portion of the site without Ferguson’s prior written consent. You may not use any Ferguson Content except in connection with Your Services and in accordance with this Agreement without Ferguson’s prior written consent.
10. YOUR INDEMNIFICATION OF FERGUSON.
You agree that you shall fully defend and indemnify Ferguson, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement or resulting in any way from your use of the Ferguson Services. You further agree to defend, indemnify and hold harmless Ferguson, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement or your use of Ferguson Services. You agree that Ferguson shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense. The terms of this Section 10 shall otherwise survive any termination of this Agreement.
11. NO JOINT VENTURE OR PARTNERSHIP.
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Ferguson and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Ferguson and you. Ferguson shall have no control or ownership interests of any kind in your business. Ferguson shall have no direct financial or other interest in, nor in any way “own” any online “store” or other online venture pertaining to your use of the Ferguson Services or Ferguson’s Equipment. Ferguson’s relationship to you shall be restricted to matters pertaining to the provision of the Ferguson Services as set forth in this Agreement.
12. FERGUSON HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY.
12.1. You confirm that you have unilaterally decided to enter the online and/or Web Site service business and that these are high risk businesses. You further confirm, understand, acknowledge and expressly agree that neither Ferguson, any agent or representative of Ferguson, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding:
12.1.1. The potential profitability, marketability, or likelihood of success of your endeavors through the use of the Ferguson Services or Ferguson’s Equipment as set forth herein or otherwise;
12.1.2. the possibility or likelihood that use of any products and/or services provided by Ferguson pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or
12.1.3. the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your use, in any manner, of the Ferguson Services or Ferguson’s Equipment pursuant to this Agreement.
12.2. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the Ferguson Services and/or Ferguson’s Equipment pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not Ferguson. You further expressly agree not to raise any claim of any kind against Ferguson and to hold Ferguson harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the Ferguson Services and/or Ferguson’s Equipment pursuant to this Agreement
13. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by Ferguson pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict Ferguson from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict Ferguson from engaging in any activities similar to yours or in competition with you.
14. NO EDITORIAL CONTROL BY FERGUSON.
Unless otherwise expressly agreed upon between you and Ferguson, in reliance on your express warranties regarding Your Data, Ferguson shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data. Ferguson does not engage in any monitoring of Your Data, and exercises no control over information which is found on the internet, except for its own Web Site. Ferguson cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for the content of Your Web Site and for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
15. PRIVACY.
15.1. It is Ferguson’s policy to respect your privacy. Ferguson will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless Ferguson deems it necessary, in its sole discretion, to:
15.1.1. comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials;
15.1.2. protect and defend the rights or property of Ferguson or its officers, agents, affiliates, and licensees;
15.1.3. enforce this Agreement; or
15.1.4. protect the interests of other Ferguson customers.
15.2. NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, FERGUSON RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER’S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.3. Your IP address is transmitted and recorded with each message you send using the Ferguson Services. Ferguson may provide certain information in aggregate form collected from and relating to you to third persons such as advertisers.
15.4. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE FERGUSON SERVICES ARE PROVIDED BY FERGUSON ADVERTISING, INC. IN THE UNITED STATES OF AMERICA. YOU FURTHER AGREE THAT THE PERSONAL INFORMATION WHICH YOU GIVE FERGUSON WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND OTHER COUNTRIES; INCLUDING WITHOUT LIMITATION COUNTRIES IN THE EUROPEAN UNION AND ELSEWHERE. IF YOU DO NOT CONSENT TO THE TRANSFER OF YOUR PERSONAL INFORMATION INTO AND OUT OF THE UNITED STATES, DO NOT ACCEPT THESE TERMS AND CONDITIONS FOR THE FERGUSON SERVICE. YOU FURTHER UNDERSTAND AND AGREE THAT REGARDLESS OF YOUR COUNTRY OF RESIDENCE FERGUSON MAY DISCLOSE PERSONAL INFORMATION ABOUT YOU AND YOUR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND YOU EXPLICITLY WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
15.5. This Section 15 only describes Fergusonâs approach to your privacy. Ferguson makes NO REPRESENTATIONS OR WARRANTIES that your privacy will be maintained or protected from any wrongful attempts by any third party to access your account or information.
16. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of Ferguson at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Ferguson.
18. NOTICES.
18.1. Ferguson may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to Ferguson. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement. Ferguson may also, at its own discretion, provide notice to you via certified mail sent to the address provided by you upon registration or as subsequently provided by you to Ferguson.
18.2. NOTICE TO FERGUSON:
18.2.1. All notices, claims, certificates, requests, demands and other communications shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows:
Ferguson Advertising, Inc.
1620 Broadway, Suite 200
Fort Wayne, IN 46802
19. FORCE MAJEURE.
19.1. In the event of “force majeure” (as defined below), Ferguson may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” shall mean circumstances or occurrences beyond Ferguson’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which Ferguson cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, acts of sabotage, fires, floods, energy outage, labor disputes, epidemics, pandemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the Ferguson Services are located or maintained or through which the Ferguson Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
19.2. Ferguson reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Ferguson Services (or any part thereof) with or without notice. You agree that Ferguson shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Ferguson Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY FERGUSON.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Ferguson’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Ferguson may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL.
21.1. ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINED BY BINDING ARBITRATION IN THE STATE OF INDIANA IN ACCORDANCE WITH THE RULES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC (“JAMS”) AND IN ACCORDANCE WITH THE RULES OF JAMS. Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. Any action to confirm or vacate such an award must be brought in either in an Indiana State Court sitting in Allen County, Indiana or the United States District Court for the Northern District of Indiana. You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that Ferguson shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that Ferguson acts to enforce this arbitration and forum selection clause, regardless of whether Ferguson prevails in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of Indiana and the federal law of the United States of America. There are no exceptions to these mandatory arbitration provisions except as set forth in Sections 21.2 and 21.3.
21.2. Notwithstanding the provisions of Section 21.1, if you fail to timely pay amounts due Ferguson may assign your account for collection and the collections agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this Agreement.
21.3. Nothing in Section 21.1 shall preclude Ferguson from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this Agreement or to remedy a breach thereof, or (ii) bringing an action to enforce this Agreement or the provisions hereof in the event JAMS will not or cannot arbitrate a particular dispute. Any action under this section 21.3 may be brought in either an Indiana State Court sitting in Allen County, Indiana or the United States District Court for the Northern District of Indiana. Each party consents to the in personam jurisdiction of such Courts for the purpose of any such action or proceeding. Each party hereby waives all rights it has or which may hereafter arise to contest such exclusive jurisdiction of the an Indiana State Court sitting in Allen County, Indiana or the United States District Court for the Northern District of Indiana.
21.4. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND FERGUSON THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived.
21.5. Neither you nor Ferguson may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND FERGUSON ACKNOWLEDGE THAT THIS SECTION 21.5 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
21.6. This Agreement shall be interpreted according to the laws of the State of Indiana, United States of America, and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles.
21.7. The terms of this Section shall otherwise survive any termination of this Agreement.
22. HEADINGS.
The headings herein are for convenience only and are not part of this Agreement.
23. MODIFICATION.
23.1. This Agreement may be materially altered by Ferguson by posting the new version of the Agreement at www.TheFerg.com and if posted in this manner, shall be effective immediately upon posting such notice. In the event that Ferguson does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty (30) days of the posting of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Ferguson. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action, brought by you against Ferguson, arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
25. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Ferguson or you have any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and Ferguson and you hereby acknowledge and agree that neither Ferguson nor you have executed this Agreement in reliance upon any such representation or promise.