TERMS OF SERVICE
Last revision: 06/09/2022
Please read this document carefully before utilizing ErgoDark Web Services.
The following words, of which at least the first letter is capitalized unless otherwise defined below, whether plural or singular, have, for the purposes of this Agreement of Service, the following definitions:
- Amazon Web Services (also referred to as “AWS”) shall refer to the third-party corporation Amazon, and specifically Amazon Web Services, and its suite of services on which many of our services rely or on top of which many of our services are built. Please familiarize Yourself with all applicable terms, conditions, and policies of AWS before using EWS as You are bound by them.
- Client (also referred to as “You”, “Your”, “User”, “Customer”) shall refer to the individual, person, entity, or business/corporate entity (i) accessing or using any of our Services, (ii) that has access to any of our Services through such a person or entity, (iii) that is represented by such a person or entity, or (iv) that accepts this Agreement.
- Content shall refer to all content and assets such as images, text, and any information or data that can be uploaded, posted, read, linked to, stored, managed, processed, submitted, or otherwise made available by You or Your customers or by any person or entity acting through You via Your access to and use of our Services regardless of its form, transmission medium, or origin. Content outside of or external to EWS, for example but not limited to an external WordPress site, is not considered “Content” by this definition.
- ErgoDark Web Services (also referred to as “EWS”, “us”, “we”, “our”, “Company”, “the Company”, “ErgoDark”, “ergodark.com”) shall refer to ErgoDark Web Services the company, the ergodark.com website, and any and all our Services found at ergodark.com.
- Payment Period shall refer to the total amount of days, denoted by a start and end date, that You are allowed access and use of one or more services found at ergodark.com, except where set forth herein, as the result of ErgoDark Web Services receiving, within fourteen (14) days of sending You a corresponding invoice, a payment from You equal to all amounts due for such service(s) at the time You order them.
- Service (also referred to as “our Services”) shall refer to one, some, or all (conditioned on usage herein) products and services provided by and found at ergodark.com and potentially made available by EWS for purchase by You, not including Third-party Services, as described herein.
- Terms of Service (also referred to as “Agreement”, “this Agreement”, “Terms”) shall refer to this document.
- Third-party Service shall refer to any services, offerings, websites, or content (including data, information, products, or services) not explicitly provided by EWS that is made available by or accessible through a third-party and that may be displayed, included, or made transitively available to You by EWS or its Services.
- United States Dollar (also referred to as “USD”, “U.S. Dollar”, “dollar”) shall refer to the official currency of the United States of America.
These are the Terms of Service governing use of Services and is an agreement entered into between You and EWS and is made effective as of the date of Your use of EWS or any Service, or the date of electronic acceptance of this Agreement. This Agreement sets out the rights, obligations, terms, and conditions of Your use of EWS and our Services.
EWS and our Services are available only to Customers who can form legally binding contracts under applicable law. By using EWS, You represent and warrant that You are (i) at least eighteen (18) years of age, (ii) recognized as being able to form legally binding contracts under applicable law, and (iii) are not a person barred from purchasing or receiving our Services found under the laws of the United States, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control, State Department, other United States authorities, or other applicable jurisdictions within or without the United States.
If You are entering into this Agreement on behalf of a corporate entity, You represent and warrant that You have the legal authority to bind such corporate entity to the obligations, terms, and conditions contained in this Agreement. If, after Your electronic acceptance of this Agreement, EWS finds that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in this Agreement including, but not limited to, all payment obligations. EWS shall not be liable for any loss or damage resulting from EWS’s reliance on any instruction, notice, notification, document, or communication reasonably believed by EWS to be genuine and originating from an authorized representative of such corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, notification, document or communication, EWS reserves the right (but undertakes no duty) to require additional authentication from You.
You agree to be bound by the terms of this Agreement for transactions entered into by You or anyone who uses our Services while acting as Your agent, whether or not authorized by You.
3. ALTERATION OF TERMS OR SERVICES
EWS may, in its sole and absolute discretion, change, modify, or replace, this Agreement and any policies or agreements which are incorporated herein (“Old Terms”), at any time, and such changes or modifications (“New Terms”) shall be effective immediately upon posting to EWS; however, if You are subject to the Old Terms at the time the New Terms are posted to EWS, the New Terms will not be effective for You specifically until thirty (30) days after they are posted to EWS; during this period, You will still be subject to the Old Terms and not the New Terms.
If the difference between the Old Terms and the New Terms is determined solely and absolutely by EWS to be substantive, we may make a reasonable (as determined by EWS in its sole and absolute discretion) effort to provide notice to You via email at some point before the New Terms are effective for You. EWS UNDERTAKES NO DUTY TO PROVIDE NOTICE PRIOR TO NEW TERMS BECOMING EFFECTIVE. In addition, EWS assumes no liability or responsibility for Your failure to receive an email or other notification.
Your use of EWS and our Services after the New Terms are effective, with respect to the foregoing, shall constitute Your acceptance of this Agreement as last revised. If You do not agree to be bound by this Agreement as last revised (i.e. New Terms), do not use, or continue to use, EWS or our Services. Additionally, EWS may terminate at any time Your use of EWS or our Services for any violation or breach of any of the terms of this Agreement by You.
EWS reserves the right to modify, change, or discontinue any aspect of EWS or our Services, including without limitation prices and fees for the same, at any time.
4. LIMITATION OF LIABILITY
In no event shall EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers be liable to You or any other person or entity for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever, including any that may result from (i) the accuracy, completeness, or content of EWS, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks, banner advertising, or otherwise) to EWS, (iii) our Services or any services from sites linked (through hyperlinks, banner advertising, or otherwise) to EWS, (iv) personal injury or property damage of any nature whatsoever, (v) third-party conduct of any nature whatsoever, (vi) any unauthorized access to or use of our servers and/or any and all content, Content, personal information, financial information, backed up data, or other information and data stored therein, (vii) any interruption or cessation of our Services or services to or from EWS or any sites or services linked (through hyperlinks, banner advertising, or otherwise) to EWS, (viii) any viruses, worms, bugs, trojan horses, scripts, malware, time bombs, or other harmful or malicious components, which may be transmitted to, from, or on behalf of EWS or any sites linked (through hyperlinks, banner advertising, or otherwise) to EWS, (ix) any content that is defamatory, harassing, abusive, harmful to minors or any protected class, pornographic, “x-rated”, obscene, or otherwise objectionable, and/or (x) any loss or damage of any kind incurred as a result of Your use of EWS or our Services, whether based on warranty, contract, tort, or any other legal or equitable theory, and whether or not EWS is advised of the possibility of such damages.
Notwithstanding any damages that You might incur, You specifically acknowledge and agree that in no event shall EWS’s total aggregate liability exceed the lesser of (i) the amount of USD actually paid by You to EWS over the past two years (730 days) minus applicable taxes and fees, (ii) the amount of USD actually paid by You to EWS over Your two most previous Payment Periods minus applicable taxes and fees, or (iii) $200.00 USD.
The foregoing limitation of liability shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this Agreement or Your use of EWS or our Services.
5. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
You specifically acknowledge and agree that Your use of EWS and our Services shall be at Your own risk and that EWS and our Services are provided “as is”, “as available”, and “with all faults” and defects. EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers disclaim all warranties, statutory, express or implied, or otherwise, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limitation to the foregoing, EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers provide no warranty or undertaking, and makes no representation of any kind that our Services will meet Your requirements, achieve any intended results, be compatible or work with any software, applications, systems, or services, operate without interruption, meet any performance, reliability, deliverability, availability, confidentiality, integrity, storage capacity, or uptime standards or requirements, or be error free or that any errors or defects can or will be corrected.
Further, EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers make no representations or warranties about (i) the accuracy, completeness, or content of EWS, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks, banner advertising, or otherwise) to EWS, and/or (iii) our Services or services linked to EWS (through hyperlinks, banner advertising, or otherwise), and EWS assumes no liability or responsibility for the same.
Additionally, You specifically acknowledge and agree that no oral or written information or advice provided by EWS and its affiliates, agents (including, without limitation, any customer service representative or support specialist), employees, directors, officers, licensors, and Third-party Service providers will (i) constitute legal or financial advice or (ii) create a warranty of any kind with respect to EWS or our Services, and that Clients should not rely on any such information or advice.
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 EWS or our Services.
6. SUMMARY DESCRIPTION OF SERVICES
EWS offers the following Services, found at EWS, which are described in greater detail in the below sections:
- Managed hosting service (“MHS”): MHS places Your website(s) and other Content on its own dedicated server with exclusive access to CPU, RAM, storage, and networking resources and wholly unaffected by the actions of other customers, their servers, and their Content. Your dedicated server is given one unique static IP address and the option to serve clients using HTTP/2 (secure, fast) or HTTP/1 (insecure). Additionally, You are given the options to (i) use a server with WordPress preinstalled, configured, optimized, and maintained for You and/or (ii) use the server software of Your choice. MHS
- TLS/SSL certificate security management service (“CSMS”): CSMS provides You with the option to secure Your Content with TLS (formerly “SSL”) certificates, which enables HTTPS functionality. Note that a TLS certificate is required to use HTTPS and HTTP/2 with MHS.
- Managed DNS service (“DNSS”): DNSS takes care of domain name acquisition, renewal, and setup and related DNS zone configuration and maintenance concerns for You. Ownership of Your managed domains can be transferred to You at any time while still allowing EWS to configure and maintain them. Note that EWS’s ability to configure Your domains is required for CSMS.
- Professional email service (“PES”): PES provides You with branded email addresses backed by inboxes or aliased (forwarded) to other addresses. PES may in addition or alternatively provide the ability for sending emails via
sendmailat the OS level. Note that EWS’s ability to configure Your domains is required for PES.
- Redundant Backup Service (“RBS”) and Quick-recovery Backups (“QRB”) service: RBS provides You with N+2 redundant backups of Your website(s), database(s), and other Content taken daily and weekly; at the beginning of every month, the last seven (7) daily backups from the previous month, along with the last two (2) weekly backups, are archived and stored for “365 days” (12 months) before being overwritten. On the other hand, QRB provides You with cloud backups of Your entire server and attached storage taken daily; each backup is stored for seven (7) days before being deleted.
- Website security, cleanup, and data reconstitution service (“SCDS”): SCDS includes auditing, filesystem-level malicious activity and integrity monitoring, frequent system updates, hand-tuned network firewall, credential stuffing and password guessing mitigations, malware cleanup, and recovery and reconstitution services after a hack/attack.
EWS makes these Services (excluding PES) available as part of two primary “packages” or “plans”: Standard and Premium. In addition, EWS offers two secondary or “add-on” packages making features of PES available.
7. MANAGED HOSTING (MHS) PROVISIONS
MHS includes “unlimited” storage, by which we mean we have not stipulated a hard limit on the amount of storage capacity You are allowed to use. However, You shall not use our Services, MHS, or server storage in any way, in our sole and absolute discretion, that shall impair the functioning or operation of our Services or infrastructure. Specifically by way of example and not as a limitation, You shall not use MHS: (i) as a repository or instrument for placing or storing archived or backed up files, (ii) to place or store Content meant to be, or that is primarily, downloaded through other websites, (iii) as a repository for video Content, or to facilitate the upload and sharing of videos (e.g. like YouTube), (iv) primarily as an upload service or federated upload service of any kind (e.g. like Megaupload, Imgur, Flickr), or (v) as a repository for so much Content that Your use of storage capacity threatens the stability of our Services or infrastructure (as determined in our sole and absolute discretion).
In addition, You are subject to a limit of no more than 250,000 inodes (or “files”) per server on a Standard plan and no more than 500,000 inodes on a Premium plan. You are also limited to no more than 1,000 tables per database and no more than one (1) gigabyte of storage per database. Any server or database that exceeds these limits will, after notification to You from EWS, be required to reduce the number of inodes, tables, or gigabytes (as the case may be) or may be temporarily suspended or terminated in our sole discretion.
7.2 YOUR SERVER
EWS does not offer a web development service, hence undertakes no duty to build any component, feature, or aspect Your website(s) or other Content for You. You shall be solely responsible for providing, updating, uploading, and maintaining Your website(s), Content, and server.
If access to a Third-party Service is required in the provision of any Service, You represent and warrant that You are authorized to provide us with access to the Third-party Service for the purposes of this Agreement. You agree that You retain sole contractual and any other legal or fiduciary responsibilities related to Your access to and use of Third-party Service. Further, EWS makes no representations or warranties about any Third-party Service offered in connection with MHS or any of our Services, and expressly disclaims any liability. We reserve the right to modify, change, or discontinue Your use of any Third-party Service at any time.
If You request that we install any software related to Third-party Service that is not provided as part of our Services, You represent and warrant that (i) You have the right to use and install such software, (ii) You have paid the applicable licensing fees for such software, and (iii) such software does not and shall not infringe on the intellectual property rights of any other person or entity.
You hereby authorize us to log into Your server for any reason or purposes including the installation and maintenance of software.
7.3 INTRA-SERVICE MIGRATION (WITHIN EWS)
You agree and acknowledge that, as a normal course of business, it may be necessary for us to migrate our servers. Hence, even if You have a static IP, You may be assigned a different IP from time to time. EWS does not warrant that You will be able to consistently maintain any static IP address.
7.4 INTER-SERVICE MIGRATION (INTO EWS)
Migrations of content from a third party into EWS are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a migration. Some hosting platforms save or represent data in an incompatible or proprietary format, which may make us unable to assist You in the transfer of data from a third-party into EWS.
You are solely responsible for reviewing the functionality and accuracy of content migrated for You into EWS. If EWS does not manage the relevant DNS records for Your website(s) or Content (CSMS), You will need to update the DNS record for the domain name in order to make Your Content available at its new location. We will not perform content backups or archives in connection with a migration, and we recommend that You back up Your third-party hosted content before migration to ensure that no data is lost. You agree not to make any changes or revisions to Your content during the migration process.
What is deemed a “website” or “app” for the purposes of migration, and the eligibility of such website or app for courtesy migration, is determined at the sole and absolute discretion of EWS and shall not include, for example but not limited to, (i) content consisting of over five (5) GB of data, or (ii) content consisting of more than 50,000 files. Additionally, You agree that we are not liable for any delay in content resolution or loss of data related to migration.
If You are migrating an external WordPress website or websites, we may install one or more plugins on Your website(s) for the purpose of facilitating migration into EWS. You are allowed to disable these plugins on Your external website(s), and any corresponding plugins on Your new website(s), after the migration has been completed.
While not prohibited, we do not under any circumstances support or provide migrations from EWS systems to another provider, hosting service, or platform.
7.5 SCALING AND BANDWIDTH
At the inception of Your Payment Period corresponding to usage of and access to MHS, and unless otherwise negotiated, the server (“Your Server”) hosting Your Content will be an Amazon EC2 instance with (i) 512 MB, 1 GB, or 2 GB of RAM and 1 vCPU (Standard); or (ii) 512 MB, 1 GB, 2 GB, or 4 GB RAM and 1 or 2 vCPU(s) (Premium). EWS will transition Your Server between these memory and processing tiers depending on Your usage and necessity of access to such tiers as determined by EWS at its sole and absolute discretion. Specifically by way of example and not as a limitation or sole metric of determination, we may change Your Server tier due to: (i) sustained high CPU load at a lower tier or low CPU load at a higher tier, (ii) sustained high memory utilization at a lower tier or low memory utilization at a higher tier, (iii) high monthly bandwidth usage at a lower tier or low monthly bandwidth usage at a higher tier, (iv) total storage utilization that exceeds the bounds (as determined by AWS) of a lower tier.
EWS, solely by Your request, may move Your Server to tiers offered by AWS but that are beyond those enumerated herein. EWS reserves the right to charge You reasonable (as determined by EWS in its sole and absolute discretion) one time and/or monthly fees corresponding to usage of such tiers. Any such fees will be added to Your total amount due and paid by You subject to the terms and conditions outlined herein.
AWS has strict limits on the amount of monthly bandwidth available for use by Your Server. Hence, if Your Server transfers data in such a way as to incur penalty charges from AWS exceeding five ($5) USD (“Grace”) in any given month, You agree to pay eighteen ($0.18) cents per GB You have gone over their transfer limit, not including the bandwidth covered by the initial Grace.
7.6 RESTRICTIONS ON CONTENT
You may not include, upload, or facilitate, as a component, part, or whole of Your Content, any of the following: (i) image hosting scripts that allow an anonymous user to upload an image for display on another website, (ii) banner ad services for display on other websites or devices, (iii) file dump/mirror scripts that allow an anonymous user to upload a file for other to download, (iv) commercial audio streaming, (v) push button mail scripts that allow the user to specify recipient email addresses, (vi) anonymous or bulk SMS gateways, (vii) backups of Content from another computer, website, or service; (viii) Bittorrent trackers, or (ix) any script that causes a degradation in the performance of our server, network environment, or infrastructure.
Further, You are responsible for ensuring that any product You sell on Your website(s) exists in compliance with all applicable laws and regulations where Your items can be purchased. We reserve the right and sole discretion to determine whether the sale of any particular item is illegal or otherwise prohibited and terminate Your Service as defined herein.
7.7 AWS CDN
EWS, solely by Your request and at additional cost to You, may augment Your service (MHS) with participation in a Content Delivery Network (CDN) Third-party Service provided by AWS. In the event Your use of MHS is augmented by a CDN, You acknowledge and agree that Your Content will be stored throughout the United States and/or the world. You acknowledge and agree that Your usage of such a CDN may be discontinued or suspended by us at any time, and Your participation is subject Your eligibility, as determined at our sole and absolute discretion, and conditioned on (but not limited to) the following: (i) You must have a service package that includes DNSS and (ii) You must not use DNSSEC. You additionally acknowledge that any TLS/SSL certificates issued to You via CSMS will cease to function.
If using AWS CDN, You acknowledge and agree to abide by the terms, conditions, policies, and agreements of Amazon Web Services.
8. MANAGED TLS/SSL (CSMS) PROVISIONS
If Your use of our Services includes CSMS, we will automatically validate, issue, install, and configure services to use Your new TLS “SSL” certificate(s) (including HTTPS and/or HTTP/2) using Third-party Services such as “Let’s Encrypt”. This requires us to generate and securely store a corresponding private key on Your server. Under no circumstances will EWS reveal Your private key, even to You, even per Your request. Further, we do not allow exports of the certificates we’ve generated or for their use on non-EWS systems.
Participation in CSMS requires DNSS.
9. MANAGED DNS (DNSS) PROVISIONS
If Your use of our Services includes DNSS, EWS will oversee for You (i) the facilitation and acquisition of domain names for a reasonable fee, (ii) annual domain name renewal for a reasonable fee, (iii) setup with related Services (such as MHS and CSMS), and (iii) other DNS zone configuration and maintenance concerns.
By request, EWS will transfer custody of Your managed domains to the registrar of Your choice, after which EWS will no longer have any responsibility to oversee renewal of Your domain nor will You have a responsibility to pay any related renewal fees to EWS. This can be done while still allowing EWS to configure and maintain the corresponding DNS zone(s). However, if You also change the NS DNS records of the corresponding DNS zone(s) such that EWS can no longer configure, manage, or maintain such zone(s), then all related Services and features relying on the ability to configure such zone(s) (e.g. DNSS, CSMS) will be suspended. This is because EWS’s ability to configure Your domains is required for the proper function of some of our Services.
Regardless of custody, You maintain complete ownership of (and ultimate feduciary responsibility for) any domains acquired or renewed on Your behalf.
10. PROFESSIONAL EMAIL (PES) PROVISIONS
PES provides You with branded Email Addresses backed by Inboxes or aliased (forwarded) to other addresses. For the purposes of PES: (i) an “Inbox” is defined as a repository for incoming and outgoing electronic mail accessible via username and password, (ii) an “Email Address” is defined as an address used to route incoming mail to an Inbox or outgoing mail from an inbox; one Inbox can have an unlimited number fo Email Addresses routing mail into or out of it, and (iii) an “alias address” which forwards any mail sent to it to a different Email Address (or even another Alias Address). You are allowed to request as many Email Addresses and Alias Addresses as You want. EWS can, in its sole and absolute discretion, accept or reject any of Your requests. You are allowed ten (10) inboxes, each with a storage limit of one (1) GB. You can request additional inboxes for which You will be charged a reasonable recurring fee.
PES, solely by Your request, may additionally or alternatively provide the ability for sending emails via
sendmail at the OS level, for which You will be charged a reasonable recurring fee.
Without limiting any of the rights set forth elsewhere in this Agreement, EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers provide no warranty or undertaking, and make no representation of any kind, that PES will meet any standards or requirements of performance, reliability, availability, or email deliverability. You acknowledge and agree to maintain independent archival and backup copies of Your Inboxes; we shall have no liability to You or any other person for loss, damage, or destruction of any email messages, Inbox content, or Content.
Participation in PES requires DNSS.
11. MANAGED BACKUP (RBS/QRB) PROVISIONS
RBS provides You with N+2 redundant backups of Your website(s), database(s), and other Content taken daily and weekly. At the beginning of every month, the last seven (7) daily backups from the previous month, along with the last two (2) weekly backups, are archived and stored for “365 days” (12 months) before being overwritten. It is these archives that are available for restoration by request.
QRB provides You with cloud backups of Your entire server and attached storage taken daily. Each backup is stored for seven (7) days before being deleted.
In order to provide these Services, EWS requires access to Your server via SSH. You authorize EWS to access Your server via SSH to facilitate and manage RBS and/or QRB.
EWS will securely store the backups of Your Content either off-site with a third-party cloud vendor or on-site at EWS datacenters. EWS reserves the right to determine where to store Your Content. At our discretion, we may not provide backups for files larger than four (4) GB and for some file types including but not limited to temporary cache files and folders.
Though RBS and QRB are meant to backup Your Content, no technology is perfect. Hence, to guarantee against loss, damage to, or corruption of Your Content, we recommend You also maintain Your own independent archival and backup copies of Your Content. Without limiting any of the rights set forth elsewhere in this Agreement, EWS shall have no liability to You or any other person for loss, damage, or destruction of any Content, including but not limited to the inability to recover or make available a backup or archive created via RBS or QRB.
Further, EWS reserves the right to charge You reasonable fees for (i) excessive recoveries via QRB archives for non-security events if You are on a “Standard” plan or (ii) excessive recoveries via RBS archives for non-security events if You are on a “Premium” plan, as determined by EWS in its sole and absolute discretion. Any and all fees will be billed to the payment method You have on file with Stripe, Inc or added to the total amount owned on Your next invoice.
12. WEBSITE SECURITY, CLEANUP, AND RECONSTITUTION (SCDS) PROVISIONS
SCDS provides Your server with network and filesystem auditing, filesystem-level malicious activity and version control system (VCS) based integrity monitoring, frequent system updates, hand-tuned network firewall, credential stuffing and password guessing mitigations, and malware cleanup, recovery, and reconstitution services after a hack or other attack.
SCDS is understood by You to be a “Best-Effort Service”. Even after taking all reasonable steps, we may not be able to resolve certain issues, reconstitute certain datasets, or recover certain functionalities. We are not responsible for, not obligated to, and will not provide assistance with any issue(s) that arise after fourteen (14) days of any invocation of SCDS except as a separate and independent invocation of SCDS. Additionally, You also acknowledge that, without RBS, the likelihood of success for recovery and/or reconstitution efforts is decreased. Similarly, You acknowledge that, for non-WordPress websites, the likelihood of success for recovery and/or reconstitution efforts and/or malware cleanup is dramatically decreased.
Notwithstanding our Services, You acknowledge Your sole responsibility to: (i) prevent any loss or damage to Your Content, (ii) maintain independent archival and backup copies of Your Content, and (iii) ensure the authenticity, confidentiality, and integrity of Your Content. We shall have no liability to You or any other person for loss, damage, or destruction of any Content.
Further, You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise of Your server or account.
Finally, EWS reserves the right to charge You reasonable fees for excessive invocations of SCDS as determined by EWS in its sole and absolute discretion. Any and all fees will be billed to the payment method You have on file with Stripe, Inc or added to the total amount owned on Your next invoice.
13. AVAILABILITY AND DISCONTINUATION OF SERVICES
EWS reserves the right to cease offering or providing (i) EWS or any of (ii) our Services or (iii) individual features, functionalities, or aspects of EWS or our Services we may offer, provide, or facilitate access to at any time, for any or no reason, and without prior notice. Although EWS makes great effort to maximize the lifespan of all our Services and features, functionalities, or aspects of our Services, there are times when a Service or specific feature, functionality, or aspect of a Service will be discontinued or reach its End of Life (“EOL”). If that is the case, those Services, or the specific feature, functionality, or aspect of that Service, will no longer be supported by EWS in any way effective on the EOL date.
In the event that any Service we offer has reached or will reach EOL, we will make a reasonable (as determined by EWS in its sole and absolute discretion) effort to provide at least thirty (30) days notice to You via email prior to the EOL date. It is Your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, EWS will either offer a comparable Service for You to migrate to for the remainder of the term of Your purchase, a prorated credit immediately applied to Your next invoice, or a prorated refund, to be determined by EWS in its sole and absolute discretion. EWS may, with or without notice to You, migrate You to the most up-to-date version of a Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
Similarly, in the event that a feature, functionality, or aspect of any Service we offer has reached or will reach EOL, we will make a reasonable (as determined by EWS in its sole and absolute discretion) effort to provide at least thirty (30) days notice to You via email prior to the EOL date. However, if the Service maintains at least reasonably equivalent functionality without such feature, functionality, or aspect, as determined by EWS in its sole and absolute discretion, EWS will not be required to offer a comparable feature or functionality for the Service or a refund.
EWS will not be liable to You or any third party for any modification, suspension, or discontinuance of (i) EWS or any of (ii) our Services or (ii) individual features, functionalities, or aspects of EWS or our Services we may offer, provide, or facilitate access to.
14. CODE OF CONDUCT, RIGHTS, AND OBLIGATIONS
You acknowledge and agree to the following:
- Your use of EWS and our Services, including any Content, will comply with this Agreement, any applicable policy that may apply to Your use of our Services, and all applicable local, state, national and international laws, rules and regulations.
- You will not collect or harvest (or permit anyone else to collect or harvest) any Content or any non-public or personally identifiable information about any person or entity without their express prior consent.
- You represent and warrant to EWS that (i) You have all necessary rights to distribute Content via EWS or our Services, and (ii) the Content does not violate the rights of any third party. You accept sole responsibility for any and all Content, and the consequences of, and requirements for, distributing it.
- You making Content available to EWS or our Services is entirely voluntary, does not establish a confidential relationship or obligate EWS to treat Content as confidential or secret, that EWS has no obligation, either express or implied, to develop or use Content, that no compensation is due to You or to anyone else for any intentional or unintentional use of Content, and that EWS may be working on the same or similar content, EWS may already know of such content from other sources, EWS may simply wish to develop this (or similar) content on its own, or EWS may have taken or will take some other action.
- EWS shall be entitled to the unrestricted use and dissemination of Content for any purpose, commercial or otherwise, without acknowledgment or compensation to You or to anyone else.
- You will not modify or alter any part of EWS, our Services, or any related technologies.
- You will not copy or distribute any part of EWS or our Services without the express prior authorization or written consent of EWS.
- You will not access EWS or Content through any technology or means other than through EWS itself, or as EWS may designate.
- By posting or publishing Content, You authorize EWS to use the intellectual property and other proprietary rights in and to Content to enable inclusion and use of Content in the manner contemplated by EWS and this Agreement. Specifically:
- You hereby grant EWS a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform Content in connection with EWS, our Services, and EWS’s and our affiliates’ business(es), including without limitation for promoting and redistributing all or part of EWS in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to You or any third party.
- You also hereby grant each person or entity accessing EWS a non-exclusive license to access Content (with the exception of Content You designate “private” or “password protected”) through EWS, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform Content as permitted through the functionality of EWS and under this Agreement.
- The above licenses granted by You for Content terminate within a commercially reasonable time after You remove or delete Content from EWS or our Services. You understand and agree, however, that EWS may retain (but not distribute, display, or perform) server copies of Content that have been removed or deleted.
- The above licenses granted by You for Content are perpetual and irrevocable.
- Notwithstanding anything to the contrary contained herein, EWS shall not use Content You have designated “private” or “password protected” for the purpose of promoting EWS or EWS’s (or EWS’s affiliates’) business(es).
- If You have a website or other Content hosted by EWS, You shall retain all of Your ownership or licensed rights in Content.
- You will not use EWS or our Services in a manner (as determined by EWS in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity.
- Promotes, encourages, or engages in the exploitation of children, or any activity related to the proliferation of Child Sexual Abuse Material (CSAM).
- Promotes, encourages, or engages in terrorism, violence against people, animals, or property.
- Promotes, encourages, or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking.
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription.
- Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking.
- Infringes on the intellectual property rights of any person or entity.
- Violates the privacy or publicity rights of any person or entity, or breaches any duty of confidentiality that You owe to any person or entity.
- Interferes with the operation of EWS or our Services.
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware.
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding EWS or our Services.
- While EWS provides backups as a potential component of our Services, You agree to independently backup all of Content. You agree to accept as a risk the loss of any and all Content.
- You are aware that EWS may call You about Your use of EWS or our Services, and that, for the purposes of any and all such call(s), You may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether EWS asks You on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which EWS is a party.
- You will not circumvent, disable or otherwise interfere with the security-related features of EWS or our Services (including without limitation security-related WordPress plugins and OS security software) or enforce limitations on the use of EWS or our Services, Content, or our content therein.
- You will not perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in EWS’s sole and absolute discretion, an unreasonable or disproportionately large load on our infrastructure.
- If Your purchase or activity on our Services shows signs of fraud, abuse, or suspicious activity, EWS may limit or terminate access to any Service associated with You, Your name, or Your email address. If EWS, in its sole and absolute discretion, determines that any conducted activity is fraudulent, EWS reserves the right to take any necessary legal action and You may be liable for monetary losses to EWS including litigation costs and damages.
- You will not re-sell or provide our Services for a commercial purpose, including any related technologies, without EWS’s express prior written consent.
- You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
- You acknowledge that the total amount of usable storage capacity for any applicable Service may differ from the represented capacity due to required space for (but not limited to) preinstalled software, plugins, operating system.
- Without limiting any of the rights set forth elsewhere in this Agreement, EWS expressly reserves the right to deny, cancel, terminate, suspend, lock, limit future access to, forgo renewal of, modify the Content of, or modify access to (or control of) EWS or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any customer (i) whose access to EWS or our Services was previously terminated or suspended, whether due to breach of this or any other agreement or any EWS policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing EWS or our Services (as determined by EWS in its sole and absolute discretion).
Please report suspected abuse of EWS Services, including and especially spam, to firstname.lastname@example.org.
15. MODIFICATION, LIMITATION, AND TERMINATION OF CLIENT
EWS expressly reserves the right to deny, cancel, terminate, suspend, lock, limit future access to, forgo renewal of, modify or remove the Content of, or modify access to (or control of) any client or user, Service (including the right to cancel or transfer any domain name registration), or Your use of or access to our Services, without refund or compensation for any reason (as determined by EWS in its sole and absolute discretion), including but not limited to: (i) to correct mistakes made by EWS in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry or registrar, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against You and/or Your domain name or website(s) and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (viii) to avoid any civil or criminal liability on the part of EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers, including, but not limited to, instances where You have sued or threatened to sue EWS, (ix) to respond to an excessive amount of complaints related in any way to You or Your domain name(s), inbox(es), website(s), or Content that could result in damage to EWS’s business, operations, reputation, or other interested parties, (x) to halt or prevent the transmission or storage of spam (as determined by EWS in its sole and absolute discretion) including but not limited to Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE), and Unsolicited Facsimiles (Fax) transmitted via any medium including but not limited to email, RSS, OS/native system message, popups, browser notifications, alerts, instant messages, or SMS/MMS messages, or (xi) to ensure Your Content meets Payment Card Industry (PCI) Data Security Standards where applicable.
You agree that EWS may immediately terminate access to EWS or our Services when we believe, in our sole and absolute discretion, You or Your Content is transmitting or is otherwise connected with any spam or other unsolicited bulk email. Additionally, if actual damages cannot be reasonably calculated then You agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your use of EWS or our Services.
Please report suspected abuse of EWS Services, including and especially spam, to email@example.com.
Additionally, EWS expressly reserves the right to review every client, database, website, inbox, or other use of our Services for excessive storage space and bandwidth utilization, and to terminate or apply additional fees to those Clients that exceed allowed levels.
EWS expressly reserves the right to terminate, without notice to You, any and all Services where, in EWS’s sole and absolute discretion, You are harassing or threatening EWS and/or any of EWS’s employees.
Termination is defined in this Agreement as: (i) You will no longer have access to our Services, (ii) any ability to use or access, and any ongoing utilization of or access to, our Services by You will be revoked, including but not limited to, the deletion of Your website(s), inbox(es), email addresses, DNS zones, any and all backed up data, and the refusal to renew any domain names registered on Your behalf; You acknowledge and accept that these actions cannot be reversed, that Your data will be wholly and completely irrecoverable, and that ownership of any domain names not transferred to You before termination is expressly forfeited, (iii) You will no longer point DNS records to EWS systems or to IP addresses owned or utilized by EWS.
To contest the modification, limitation, termination, or impending termination of Your access to our Services, please contact us.
16. THIRD-PARTY LINKS, SOFTWARE, AND SERVICES
Our Services may contain, link to, incorporate, advertise, install, or otherwise make use of third-party websites, software (including WordPress and its plugins), content, goods, or Third-party Services that are neither owned nor controlled by EWS.
EWS has no control over, and assumes no responsibility in any capacity for, the policies, terms, agreements, or practices of any third-party. Additionally, EWS undertakes no duty to censor or modify any Third-party Service. You further acknowledge and agree that EWS shall not be responsible or liable in any capacity, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such websites, software, content, goods, or Third-party Services.
17. PRICES, PAYMENTS, AND INVOICES
You acknowledge and agree that, within fourteen (14) days of EWS issuing to You an invoice, and regardless of You having received such an invoice, You will complete a payment from You to EWS equal to all amounts due for Service as detailed by such invoice using a payment method acceptable to EWS.
The amount due (or “price”) for Service is determined solely by the amounts listed in the invoice received, unless that invoice was issued in error or is inaccurate as determined by EWS in its sole and absolute discretion, and by no other metric or listing regardless of source. If an invoice is found to be inaccurate or was issued in error, EWS may issue one or more invoices requiring additional payment from You subject to the same terms, conditions, agreements, and covenants governing the original invoice.
By accepting and paying an invoice from EWS in exchange for access to and use of our Services for one Payment Period with start and end dates determined by such an invoice and in accordance with this Agreement, You represent and warrant that (i) You have the legal right to use any credit or debit card(s) or other payment method(s) used to pay the invoice and that (ii) all information You supply to us is true, accurate, and complete.
You acknowledge and agree that EWS may provide Your payment method information to payment processing third parties, if necessary, for purposes of facilitating payment of Your invoice. Under no circumstance, other than as required by applicable law, will EWS store or retain Your payment or related information; any transmission or storage of payment or related information will be facilitated by a Payment Card Industry Data Security Standards compliant third party (“Stripe, Inc”) and not EWS. You acknowledge that You are subject to the terms and policies of this third party.
If You are being billed on a recurring basis, such as monthly, Your billing date will be based on the date of issuance of Your first invoice. You will then be charged for each successive Payment Period at Your preferred cadence indicated at the initial time of purchase. If You decide You desire to change Your billing date or cadence, EWS must receive Your request at least three (3) days before Your next payment is due. EWS can, in its sole and absolute discretion, accept or reject Your request. If Your request is rejected, You are obligated to pay the full amount owed at the originally agreed upon time and at the originally agreed upon cadence.
By default, EWS uses “Stripe, Inc Subscription Invoices” to accept payments from customers, though we may use other payment acceptance methods offered by Stripe, Inc. Hence, You acknowledge and agree that You may be subject to automatic renewal of Service via recurring payment and that, unless disabled or cancelled, Your payment method may be charged automatically. You are free to modify or cancel Your recurring payment or related settings through Stripe, Inc at any time for any reason subject to their terms and policies. You may also submit to EWS a request to cancel Your recurring payments at any time for any reason. EWS must receive Your request at least two (2) days before Your recurring payment is due so that we have time to cancel it for You. Otherwise, it is Your sole responsibility to modify and maintain Your payment settings. Once cancelled, or after failing to receive adequate payment from You for our Services due to insufficient funds, chargeback, reversal, payment dispute, penalty fee, or other failure, (i) You will no longer be billed by EWS (or Stripe, Inc) or receive invoices from EWS (through Stripe, Inc) for our Services, (ii) You will no longer have access to our Services, (iii) any ability to use or access, and any ongoing utilization of, our Services by You will be terminated as defined herein, and (iv) EWS may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to You, of any domain names or Third-party Services registered or renewed on Your behalf.
EWS reserves the right to charge any or all fees for our Services prior to the commencement of any work being performed, any access to You being granted, or any credentials being transferred to You. EWS also reserves the right to charge You reasonable “administrative fees” for (i) tasks EWS may perform outside the normal scope of our Services, (ii) additional time and/or costs EWS may incur in providing our Services, and/or (iii) Your noncompliance with this Agreement as determined by EWS in its sole and absolute discretion. Any and all fees will be billed to the payment method You have on file with Stripe, Inc or added to the total amount owned on Your next invoice.
If You pay Your invoice and later decide You desire a refund, and You are eligible for a refund as determined by EWS in its sole and absolute discretion, You have two weeks (14 days) from the date the invoice was issued to request a refund. If EWS in its discretion grants Your request, You will receive a full and complete refund of Your invoiced payment, minus any transaction fees (if any), to the payment method used to pay the corresponding invoice.
You agree that EWS’s issuance of a refund receipt, or any other confirmation or notification of a successful refund whether verbal or written, is only a confirmation that EWS has submitted through Stripe, Inc Your refund to the payment method used to pay the corresponding invoice and that EWS has no control over when the refund will be applied towards Your payment method’s available balance, which can range from three to five (3-5) days to a month or longer.
In the event that a refund to Your original payment method is not possible, and at the sole and absolute discretion of EWS, You acknowledge and agree that EWS may instead write You a check which will be sent to the mailing address of Your choice.
19. UPTIME GUARANTEES
EWS guarantees a service-level uptime of 99.9% of available time per month (“Service-level Guarantee” or “SLG”). If EWS fails to maintain this SLG in a particular month (as solely and absolutely determined by EWS), Your next invoice will be credited with 10% of that month’s Service fee off as compensation. This SLG does not apply to service interruptions or outages (i) caused by periodic scheduled maintenance or repairs we may undertake from time to time, (ii) caused in any way shape or form by You or Your Content (as solely and absolutely determined by EWS), (iii) that do not affect the appearance of Your Content but merely affect access to Your Content such as, but not limited to, FTP or SSH access, (iv) of email Services or deliverability, (v) related to the reliability of certain programming environments, (vi) that are the result of security events or recovery from such events, (vii) caused by Third-party Services, (viii) due to the restoration of backups, or (ix) due to causes beyond our control or that are not reasonably foreseeable.
20. DISPUTE RESOLUTION
If You have any concern or dispute about EWS or our Service, You agree to first make a good faith effort to resolve the dispute informally by contacting EWS via email (firstname.lastname@example.org) or through the methods outlined at https://ergodark.com/support.
21. DMCA; INTELLECTUAL PROPERTY CLAIMS; TRADEMARK CLAIMS
EWS respects and supports the protection of the intellectual property rights of others. It is our policy to respond to any notification or claim that content infringes upon a copyright or other intellectual property infringement as set forth herein. If You are an affected copyright holder or are otherwise authorized on behalf of one, and You believe that a copyrighted work has been copied in a way that constitutes copyright infringement and such infringement is taking place on or through our Service, You must submit a notification to EWS via email (email@example.com) that includes the following information via email as so described; alternatively or additionally, You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing us with the following information via email as so described (see 17 U.S.C 512(c)(3) for further detail):
- A description of the allegedly infringing work, asset, or resource.
- Identification of the web page address (web addressable URL) or other specific location on our Service where such allegedly infringing resource is located.
- Your complete address including zip code, state, and country
- Your telephone number of at least ten (10) digits
- Your email address to which all correspondence will be initially directed.
- An affidavit or statement by You made under penalty of perjury that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- An affidavit or a statement by You made under penalty of perjury that all information in Your notification is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.
- An electronic or physical signature (as an attachment) of the copyright owner or a person authorized to act on behalf of the owner of the copyright’s interest.
Upon receipt of such a notification, EWS will take whatever action, in EWS’s sole and absolute discretion, we deem appropriate, including but not limited to removal of the challenged content from our Service.
You may be held accountable for damages (including costs and attorneys’ fees) for fraudulent DMCA notifications, intellectual property claims, trademark claims, or otherwise misrepresenting that any content is infringing Your or another’s copyright.
22. COPYRIGHT INFRINGEMENT AGAINST EWS
EWS, our Services, Service features, Service functionality, trademarks, service marks, logos, software, APIs, text, scripts, source code, graphics, sounds, photos, music, and other intellectual properties remain the exclusive property of EWS in perpetuity. EWS, our Services, and the foregoing properties are protected by any and all applicable copyright, trademark, patent protection, and/or other laws of both the United States of America and applicable foreign countries. The foregoing properties are provided to You “as is”, “as available” and “with all faults” for Your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of EWS. Similarly, our trademarks and trade dress may not be used in connection with any product, service, or Third-party Service without the express prior written consent of EWS.
No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. EWS reserves all rights not expressly granted in, by, and to EWS, ergodark.com, and our Services, and this Agreement do not transfer ownership of any of these rights.
23. GOVERNING LAW
The laws of the United States of America, excluding its conflicts of law rules and except where set forth herein, shall govern Your access to, use of, and interaction with EWS and our Services. We make no representation or warranty that the content available via EWS or our Services are appropriate in every country or jurisdiction. Accessing EWS or our Services from countries or jurisdictions where such access is illegal is strictly prohibited. Clients who choose to access EWS or our Services are responsible for compliance with all applicable laws, rules, and regulations.
You agree to protect, defend, indemnify, and hold harmless EWS and its affiliates, agents, employees, directors, officers, licensors, and Third-party Service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by EWS directly or indirectly arising from (i) Your use of and access to EWS and its Services; (ii) Your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) Your violation of any Third-party Service right, including but not limited to any intellectual property or other proprietary right.
The indemnification obligations under this section shall survive any termination or expiration of this Agreement or Your use of EWS or our Services.
25. SUCCESSORS; THIRD-PARTY BENEFICIARIES
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
However, nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
26. HEADINGS; SEVERABILITY; WAIVER
Each heading of this Agreement, including the title, is for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.
If any provision, section, or covenant of this Agreement is held to be unenforceable, illegal, or invalid, such provision, section, or covenant shall be construed and interpreted for all purposes to accomplish the objectives of such provision to the greatest extent possible under applicable law as a separate and independent agreement; the remaining provisions (or portions of provisions), sections, and covenants outlined in this Agreement shall not be affected thereby and shall continue in full force and effect.
Except where set forth herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach of this Agreement constitute a waiver of any subsequent breach.
27. TRANSLATION INTERPRETATION; ENGLISH LANGUAGE CONTROLS
This Agreement, which may have been translated for convenience purposes when made available to You, are executed in the English language. In the case a dispute or the event of any conflict between the English and any translated version of this Agreement, where permitted by law, the original English version will prevail and control.
28. CONTACT US
For urgent legal concerns and notifications, please email us at firstname.lastname@example.org. Otherwise, if You have any questions, comments, or concerns about this Agreement or our Service, You can get in touch with us via the methods described on our website: https://ergodark.com/support.