Terms of Service
Posted/Revised January 22, 2008
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY GOGRID SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN GOGRID AND YOU, INCLUDING ANY GOGRID CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as “Customer”).
This agreement (this “Agreement”) between ServePath, LLC, a Delaware limited liability company doing business under the name GoGrid, (“GoGrid”) and Customer governs provision of GoGrid’s services (the “Service”). This Agreement is effective as of the moment Customer indicates agreement at the GoGrid Website, as of the moment the two parties sign a paper version, or as of the moment Customer uses any GoGrid Website or element of the Service (whichever comes first).
1. The Service.
(a) GoGrid will provide the Service pursuant to this Agreement and GoGrid’s then-standard policies and procedures.
(b) Professional services included in the Service, if any, are subject to the same terms and conditions as other elements of the Service, including without limitation the disclaimers and limitations of liability in Section 7 below. Each professional service is also subject to the terms and conditions of its statement of work (if any) executed by authorized representatives of both parties. Fees for professional services are in addition to Service fees required pursuant to Subsection 2(a) or 2(b) below. Customer will pay for professional services at GoGrid’s then-standard rates, unless the relevant statement of work specifically provides for a different payment structure.
2. Payment Plans & Terms.
(a) Customer will pay GoGrid’s standard fees for memory, data, and other Service elements according to one of the following plans, as reflected in Customer’s ordering records maintained by GoGrid (Customer’s “Signup”):
(i) “Trial”: Customer pays for such Service as it uses, and GoGrid may charge fees daily (or at such times as it chooses).
(ii) “Prepaid Allotment”: Customer pays for a preset Service allotment for each month, with payment due before the start of such month. Customer will pay overage fees in the event that it exceeds its allotment during any hour, as calculated by GoGrid pursuant to its standard policies, and GoGrid may charge overage fees daily (or at such times as it chooses). Customer may increase (“Upgrade”) or decrease (“Downgrade”) its monthly Service allotment through the GoGrid customer portal, www.My.GoGrid.com(the “Customer Portal”). Additional charges will go into effect upon Upgrade, and GoGrid may charge a prorated increase in Service fees for the month at hand on a daily basis (or at such times as it chooses). For a Downgrade, GoGrid will issue Customer a credit against its next monthly charge, equivalent to a prorated decrease in Service fees for the month at hand.
(b) Customer will pay any set-up or other fees required pursuant to GoGrid’s standard policies. Customer will make all payments in U.S. dollars. GoGrid is not required to issue refunds or credits except as specified in this Agreement. Without limiting the generality of the foregoing: (i) Customer’s early termination of a prepaid month (or other prepaid Service period) will not entitle Customer to a refund or credit; and (ii) no credit will entitle Customer to a refund.
(c) Any payment not received when due will, at GoGrid’s option, bear interest at a rate of 1.5% per month from the date due until paid, to compensate GoGrid for the time-value of the unpaid fees. In addition, GoGrid may charge a late fee of $19.99 per week, as liquidated damages, starting on the first day after any payment is due. Such liquidated damages compensate GoGrid for administrative expenses related to unpaid fees.
(d) Service fees for Trial accounts and overage fees apply regardless of the cause of the Service usage or overage, even if caused by hacker activity or other third party actions. GoGrid is not required to issue or provide a roll-over of memory or data to a future month, a credit, or any other refund in the event that Customer under-utilizes its Service allotment.
(e) Customer will maintain a valid credit card on file at all times. GoGrid may charge such card for Service fees or other fees on the first business day prior to any payment due-date. Customer will update credit card information as necessary in the Customer Portal. If any charge attempt is denied, GoGrid may interrupt Service without advanced notice but will make reasonable efforts to provide such notice.
3. Termination.
(a) This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 3.
(b) Customer may terminate this Agreement by written notice, effective on the day after such notice. Customer will provide notice of termination through the online cancellation form in the Customer Portal. GoGrid is not required to refund any payments in the event of termination by Customer.
(c) GoGrid may terminate this Agreement for convenience at any time. GoGrid will provide 30 days’ advanced written notice of any termination for convenience. Upon such termination, GoGrid will refund any amounts prepaid for Service not yet provided.
(d) In the event of any breach of this Agreement, including without limitation any breach of the provisions of the AUP (as defined in Subsection 4(a) below) or of the payment obligations set forth in Section 2, GoGrid may terminate the Service, any portion thereof, or this Agreement, without advanced notice. GoGrid is not required to refund any fees paid or prepaid after such termination.
4. Acceptable Use & Privacy.
(a) Customer represents that it has read GoGrid’s acceptable use policy (“AUP”), currently posted at http://www.GoGrid.com/legal/aup.php. The AUP is hereby incorporated into this Agreement, and Customer will adhere to its requirements.
(i) Without limiting the generality of the foregoing, Customer will not allow the Service or GoGrid equipment to be used for activities prohibited by the AUP. Third party violations of the AUP using Customer’s Service, including any IP addresses, points of access to the Internet, systems, or software, will be considered violations by Customer.
(ii) Notwithstanding any provision to the contrary in this Agreement, and without limiting any of GoGrid’s rights or remedies, GoGrid may suspend Service in whole or in part in the event that GoGrid reasonably suspects an AUP violation. Reasonable suspicion pursuant to the preceding sentence includes, without limitation, a third party notice or claim that Customer’s use of the Service infringes on third party rights. GoGrid will make reasonable efforts to notify Customer before any such suspension, unless the AUP violation calls for immediate action to prevent injury or liability, in GoGrid’s opinion and at its sole discretion. Suspension pursuant to this Subsection 4(a)(ii) may continue so long as GoGrid reasonably suspects an AUP violation. GoGrid is not liable for any Service suspension authorized by this Subsection 4(a)(ii), even if the suspected AUP violation did not occur.
(b) GoGrid has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. GoGrid may grant law enforcement agencies access to its equipment, including equipment used to provide Service to Customer.
(c) GoGrid’s privacy policy (“Privacy Policy”), currently posted at http://www.GoGrid.com/legal/privacy-policy.php,is hereby incorporated into this Agreement. The Privacy Policy applies only to the Service and to GoGrid’s Website. GoGrid is not responsible for use or misuse of data by any third party, including without limitation any other GoGrid customer.
5. Service Levels & Remedies.
(a) GoGrid’s standard service level agreement, posted at www.GoGrid.com/legal/sla.php, (the “SLA”) is hereby incorporated into this Agreement.
(b) The SLA does not apply to any feature of the Service not specifically identified in the SLA, or to any feature GoGrid identifies as “beta.” All Service features excluded from the SLA are provided pursuant to the provisions of Section 7(b) below and the other terms and conditions of this Agreement. Customer recognizes and agrees that, in providing technology support services (if any) pursuant to the SLA or otherwise, GoGrid may, in its sole discretion, grant priority to Prepaid Allotment accounts, over and above Trial accounts.
(c) GoGrid will not be liable for Service interruptions or any other Service failures except as specifically set forth in the SLA and in this Section 5. In the event of hardware failure: (i) GoGrid will make reasonable efforts to recover lost data, upon Customer’s request, but data-recover is not guaranteed; and (ii) a credit will be applied against Customer’s next invoice, equivalent to any fees attributable to the period during which Service was not provided due to such hardware failure (if any). In the event that Customer is dissatisfied with the Service, Customer’s sole remedies are those listed in the SLA and in this Section 5, or termination of this Agreement pursuant to the provisions of Section 3 above. Remedies listed in the SLA do not apply to any Service interruption authorized pursuant to Section 6 or any other provision of this Agreement, and GoGrid will not be liable for any such interruption.
6. Maintenance & Security.
(a) GoGrid may interrupt Service to perform maintenance on GoGrid equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. GoGrid will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly.
(b) Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups, except to the extent GoGrid specifically accepts such responsibility by listing such services in Customer’s Signup (subject to the limitations of liability in Section 7 and elsewhere in this Agreement). Customer will promptly report any Service failure to GoGrid via the online ticketing system in the Customer Portal. GoGrid is not responsible for providing physical access to or copies of software, data, or content stored on GoGrid’s equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access. GoGrid may notify Customer of leaks or exposure of private data, but except to the extent required by law, GoGrid is not required to provide such notification.
(c) GoGrid is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.
7. Warranties, Disclaimers, & Limitations of Liability.
(a) No communication between Customer and GoGrid will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 7 or elsewhere in this Agreement. As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by GoGrid or any of its representatives, quotes, Customer’s Signup, and any work order or other ordering document.
(b) GOGRID MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GoGrid does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, or data integrity. Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
(c) GOGRID WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. GOGRID’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM. THE LIABILITIES LIMITED BY THIS SUBSECTION 7(c) INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
(d) Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, GOGRID WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY GOGRID EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO GOGRID, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES; (vi) ACTIONS OF GOGRID EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. As used in the preceding sentence, “third parties” include other GoGrid customers. THE PROVISIONS OF THIS SUBSECTION 7(d) APPLY, WITHOUT LIMITATION, TO LIABILITY FOR NEGLIGENCE, AND APPLY EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY.
(e) GoGrid’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 7 and elsewhere in this Agreement, (collectively, the “Limitations”) apply equally to GoGrid’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that GoGrid has set its prices and entered into this Agreement in reliance upon the Limitations, and that the Limitations form an essential basis of the bargain between GoGrid and Customer. The Limitations survive and apply even if Customer’s remedies provided in this Agreement are found to have failed of their essential purpose.
8. Indemnity.
Customer will defend and indemnify GoGrid (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Service, including without limitation: (i) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (ii) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (iii) any action taken by GoGrid as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.
9. Miscellaneous.
(a) All software, hardware and Internet protocol addresses provided by GoGrid are licensed to Customer temporarily and remain GoGrid’s sole and exclusive property. Title and intellectual property rights to the Service are owned by GoGrid, its agents, suppliers, or affiliates or their licensors. Nothing in this Agreement transfers to GoGrid any copyright in, trademark on, or other ownership interest in any data or content of Customer posted at any website.
(b) During the term of this Agreement and for 180 days thereafter, Customer will not encourage or solicit any GoGrid employee or independent contractor to leave GoGrid’s employ, or otherwise interfere with GoGrid’s employment relationships.
(c) The parties agree that the fees listed as liquidated damages in Subsection 2(c) of this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of GoGrid provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of GoGrid at law or in equity.
(d) All written communications to Customer will be deemed delivered if sent to the contact points provided to GoGrid at the time of order, or to such other contact points as Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to GoGrid will be mailed to 360 Spear St., Suite 200, San Francisco, CA 94105, unless GoGrid notifies Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through the Customer Portal.
(e) GoGrid may revise this Agreement, including the AUP, the Privacy Policy, the SLA, and the standard provisions of any payment plan, from time to time by posting a new version on the GoGrid Website. Revised terms will become effective 30 days after posting thereof (the “Renewal Date”). Customer waives any right to notice of revised terms other than through the GoGrid Website, and such waiver will remain in force even if GoGrid does provide notice by e-mail or another medium. Customer’s continued use of the Service after any Renewal Date will constitute acceptance of such revised terms. Notwithstanding the foregoing, revisions to the Privacy Policy will become effective upon posting thereof. This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties. GoGrid may provide notices via e-mail, but no e-mail exchange will amend this Agreement, even if such messages purport to do so.
(f) This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Francisco, California.
(g) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy.
(h) In the event of any conflict between this main body of this Agreement and any document incorporated by reference, or any ordering document or statement of work, this main body of this Agreement will govern.
(i) If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired.
(j) This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.
