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Terms of Use Web Service Agreement AGREEMENT This Agreement sets forth the Standard Terms and Conditions that apply to the use of the web hosting or programming services of Len Anderson DBA Anderson Industries/Arizona Website Solutions, Arizona Website Solutions, KeenEye Designs. YOUR USE OF PROGRAMMING SERVICES OR HOSTING THROUGH LEN ANDERSON, LES THURMOND, (WWW.LENANDERSON.NET ie WWW.ARIZONAWEBSITESOLUTIONS.COM) INDICATES YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE. You agree to familiarize yourself with the Terms of Service, and abide by them if you choose to use the services to which such terms apply. CLARIFICATION OF PRINCIPALS This Agreement pertains to the relationship between you and any or all of the following entities: Len Anderson, Les Thurmond, Arizona Website Solutions, FollowMeCD.com, lenanderson.net, Anderson Industries, Keen Eye Designs, keeneye.biz, arizonawebsitesoltions.com. REMEDY You agree that your sole and exclusive remedy to any issues relating to the Len Anderson DBA Anderson Industries/Arizona Website Solutions Service is to discontinue using the Service after canceling as outlined herein. RIGHT TO DISSAGREE You have a right to disagree with these terms of service. If you disagree then you must cease and desist the use of the programming or hosting services provided by Len Anderson the moment you no longer in agreement, failure to discontinue service, even when actual valid issues are at hand, is an indication that you agree under protest. OWNERSHIP You are the sole and complete owner of any and all items used to create, operate or broadcast your website. Len Anderson does not assume any ownership of your code, but reserves the right to use portions of it in other applications. If your account is current then you will be given current and live access to your site files and your data or database. If your account is past due then you will be in a state of "lock down" as described below where you will be given limited access to your files, and not recent backups of your data. USER CONDUCT You agree to abide by all applicable local, state, national and international laws and regulations regarding your use of our service. USER ELIGIBILITY You represent and warrant that you are the person legally responsible for all use of this account, and are at least 18 years of age. If you are under 18 years of age, you must have parental consent in order to participate, and the account must be opened and maintained by a parent or legal guardian, in their name. You agree to provide Len Anderson DBA Anderson Industries/Arizona Website Solutions. with your full legal name, postal address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any credit card that you supply to us, and you understand and agree that we have an obligation to fully investigate any possible fraudulent credit card use. CONTENTS OF MESSAGES You are responsible for the contents of your messages and your website and the consequences thereof. You agree not to do anything that would restrict or inhibit any other user from using and enjoying the Internet. You further agree not to use Len Anderson DBA Anderson Industries/Arizona Website Solutions. to send any messages or material that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or may otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or court order. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to terminate your account without prior notice if Len Anderson DBA Anderson Industries/Arizona Website Solutions. becomes aware of and determines, in its sole discretion, that you are violating any of the foregoing guidelines UNLAWFUL OR PROHIBITED USE As a condition of your use of the Len Anderson DBA Anderson Industries/Arizona Website Solutions. Service you warrant to Len Anderson DBA Anderson Industries/Arizona Website Solutions. that you will not use the Len Anderson DBA Anderson Industries/Arizona Website Solutions. Service for any unlawful purpose. TERMS OF PAYMENT Whether paying by credit card or check, all payments are due and payable by the first of the month. Billing is processed one month ahead and work performed must be pre-paid. Your time in a given month is allocated based on the status of your payment, accounts that are past due or in "lock down" are always the lowest priority in allocating time. Current accounts are always the highest priority in allocating time. You agree to pay Len Anderson DBA Anderson Industries/Arizona Website Solutions. appropriate payment for the services received from Len Anderson DBA Anderson Industries/Arizona Website Solutions., in advance of the time period during which such services are provided. You agree to provide Len Anderson DBA Anderson Industries/Arizona Website Solutions. with current billing and contact information and authorize Len Anderson DBA Anderson Industries/Arizona Website Solutions. to bill all account and related charges to the credit card on file. You further agree that until and unless you notify Len Anderson DBA Anderson Industries/Arizona Website Solutions. of your desire to cancel any or all services received, and you complete the cancellation process, those services will be billed on a recurring basis. In order for the account to be cancelled, it must be paid in full at the time of cancellation. You agree that prepayments will be billed and charged automatically, that Len Anderson DBA Anderson Industries/Arizona Website Solutions. may apply the amount due to the provided card at any time, and will issue .absolutely no refunds If your credit card is denied for any reason on the first attempt, we will automatically attempt to resubmit your card on on or around the 7th, 14th, 25th and last day of the month. A credit card resubmission fee of $10.00 will be charged against the account for every time we attempt resubmission. Should the card be denied again, we may terminate the account, and the resubmission fees (up to $50.00 per month) will need to be paid before the account can be reactivated. All files within the account may be deleted on termination. You may notify us in advance of your next billing cycle your desire to provide for alternative payment arrangements. If paying by check and payment is late, an administrative fee of $10 per instance will be applied on the 7th, 14th, 25th and the last day of the month after the payment falls due. There is a $25 fee for a dishonored check. Should payment continue to be late, Len Anderson may choose to terminate the account at any time and all accumulated fees will need to be paid before the account can be reactivated again. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to change prices at any time. Each account has resource quotas; it is the account owners responsibility to monitor usage. Any quota excess is payable by the account owner PAST DUE ACCOUNTS At Len Anderson's sole discretion, if pre-payments are not in place or your account is past due, your website may be put into a state of "lock down". When in this state, you will not be given full access to your data, or site files. You will not be allowed to cancel the account until you are current, while working on becoming current or making payments, Len Anderson will work with other programmers or companies, or outside agencies, at his sole discretion and may or may not provide any files or data at all. It is the sole decision of Len Anderson to enforce any or all of these terms. OUTSIDE ENTITIIES Our pricing and offerings are based on exclusive access to the work we perform. If you bring in an outside entity then you negate the relationship you have garnered with us and it is the sole responsibility of this outside entity to have full knowledge of every aspect of what they are professing to handle. For information, even as simple as a file path or configuration detail, there is a $375 per-incident, or question, billed up-front to this outside entity. Make sure anyone who is bidding on services understands this. We require any groups that profess to be able to meet your needs to come, pre-loaded, with all the knowledge necessary. If they do not have full knowledge of all aspects of the server, client, database mix, they should not profess to you to be able to handle your needs. COLLECTION ACCOUNTS If your account ends up in collections after lock down, and your balance is not paid, then your files and site can be deleted, permanently, by Len Anderson, as his discretion. WEBSITE CONTENT You are responsible for keeping a copy of your most current website files as backup on a remote system. Len Anderson DBA Anderson Industries/Arizona Website Solutions. is not responsible for any lost files, information, or data, corrupted data, mis- aligned data or data held due to lock down or collection status. Len Anderson is also not required to provide these backups, what you are eligible for will be available on your web server under password at a location Len Anderson will provide. USER RESPONSIBILITIES You may not initiate any of the following on the Len Anderson DBA Anderson Industries/Arizona Website Solutions. servers: Any process that requires more than 4Mb of memory space, more than 15 CPU seconds, or uses more than 1% of all available system resources at any time or otherwise threatens the stability of the server. Any type of interactive real-time chat applications that require server resources. These do not include applications such as HumanClick, as remotely hosted services are fully allowed. Any other service that performs CGI services for any site not within the account, such as a banner exchange. Any stand-alone, unattended server-side processes. This includes any and all daemons, such as IRCD (internet relay chat daemon). Any software that interfaces with an IRC (Internet Relay Chat) network. Users are also required to abide by the following rules: No database may be used for logging of information available through our server logs (ie traffic counters). Please contact us if you need detailed statistics for your website, we can work with you to develop a manageable solution. We also provide Webalizer stats free with each account. Databases are only to be used for Len Anderson DBA Anderson Industries/Arizona Website Solutions.-hosted websites, and no outside access will be granted. THis insludes remote SQL, ODBC and other connectors, unless expressly allowed by Len Anderson. No scheduled task can run more than once every two hours. You agree not to interfere with the operation of the system. You further agree not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You agree to adhere to system policies as published by Len Anderson DBA Anderson Industries/Arizona Website Solutions., including restrictions on services available with each service type, restrictions on certain features, and all other policies. You agree to abide by any and all future Len Anderson DBA Anderson Industries/Arizona Website Solutions. policy decisions. Failure to observe these policies may include suspension or termination of you account or deletion of your site data, without notice. ZERO TOLERANCE SPAM POLICY Len Anderson DBA Anderson Industries/Arizona Website Solutions. takes a zero tolerance stance against sending of unsolicited e-mail, commonly known as spam. Any user who sends out spam will have their account terminated without notice, and will be billed at a rate of $10 for each recipient to whom the message was sent, regardless of whether the messages were sent from our server, or from another server advertising a site hosted on our servers. All commercial mailings must also comply with the CAN-SPAM act and any other applicable federal, state or local laws. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to require changes or disable as necessary any website, account, database, or other component that does not comply with this policy, at its sole discretion. Len Anderson DBA Anderson Industries/Arizona Website Solutions. also reserves the right to make any such modifications in an emergency at our sole discretion. MONITORING OF SERVICE You agree that Len Anderson DBA Anderson Industries/Arizona Website Solutions. has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. Len Anderson DBA Anderson Industries/Arizona Website Solutions. also reserves the right to refuse refunds in cases where Len Anderson DBA Anderson Industries/Arizona Website Solutions. believes abuse has taken place. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to monitor any and all communications through or with our facilities. You agree that Len Anderson DBA Anderson Industries/Arizona Website Solutions. is not considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is afforded. UPTIME GUARANTEE There is no "up time" guarantee of any kind, either implied or claimed by Len Anderson. Len Anderson will work to keep your site accessible as much as possible, but down time can and most likely will occur. Len Anderson offers "dedicated" and other services if uptime is a concern, please investigate these options, some offer s much as 100% uptime. Len Anderson does not provide any off-hour support, or constant monitoring, but these services may be offered if you are interested. SHARING OF ACCOUNT SPACE & RESALE RESTRICTIONS You represent and warrant that the account you purchase is purchased either for yourself or on behalf of a client if you are a reseller. You agree that as a reseller, you are the individual solely responsible for all use of the account. REFUND POLICY All payments are non-refundable. There are no exceptions, and all payments are due up front. TERMINATION Len Anderson DBA Anderson Industries/Arizona Website Solutions. may terminate this agreement and your access to any or all Len Anderson DBA Anderson Industries/Arizona Website Solutions. related services at any time, with or without cause, effective immediately. Len Anderson DBA Anderson Industries/Arizona Website Solutions. shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Anyone determined by Len Anderson DBA Anderson Industries/Arizona Website Solutions. to have violated these Terms of Service may be barred from receiving any services from Len Anderson DBA Anderson Industries/Arizona Website Solutions. Any outstanding amount due on the account will still be payable. Past due or lock down accounts can be terminated at any time, and final billing will reflect any time it takes to lock down the site, delete files or remove web pages. When your account is current you may terminate this Agreement at any time by e-mailing the support department at Len Anderson DBA Anderson Industries/Arizona Website Solutions. No refund shall be issued for any reason, ever. Len Anderson DBA Anderson Industries/Arizona Website Solutions. must receive all completed and correct termination requests by midnight on the end of the previous month in order to avoid paying for the next month's service and account to be cancelled must be paid in full at the time of cancellation. Accoutns that are paid in full when cancelled will be purged from Len Anderson DBA Anderson Industries/Arizona Website Solutions' systems and full ownership will be retained by the cancelling client. If your account is not current and you discontinue using Len Anderson's products or services, you have a 3 month period to bring your account to a current status or you surrender any and all ownership of the code, images or data to Len Anderson, who has the right to auction this property off to the highest bidder to recover fees. Any amounts collected above and beyond the amount owed can be retained by Len Anderson. RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever. Len Anderson is only responsible for billed time, in hour increments, or if another agreement is in place then the terms of that agreement apply. (see explanation of billing programs below) In NO WAY is Len Anderson responsible for loss of revenue due to decreased sales, system outage, data corruption or any other situation that may take the site down. This is especially true for accounts in lock down or in collections. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY THE Len Anderson DBA Anderson Industries/Arizona Website Solutions. SERVICE PROVIDED IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Len Anderson DBA Anderson Industries/Arizona Website Solutions. EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE Len Anderson DBA Anderson Industries/Arizona Website Solutions. SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY Len Anderson DBA Anderson Industries/Arizona Website Solutions., ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL Len Anderson DBA Anderson Industries/Arizona Website Solutions., OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE Len Anderson DBA Anderson Industries/Arizona Website Solutions. SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE Len Anderson DBA Anderson Industries/Arizona Website Solutions. SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO Len Anderson DBA Anderson Industries/Arizona Website Solutions. RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT Len Anderson DBA Anderson Industries/Arizona Website Solutions. IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM Len Anderson DBA Anderson Industries/Arizona Website Solutions. AND ITS AFFILIATES. UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE. THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON. COPYRIGHT AND TRADEMARKS All contents of the Len Anderson DBA Anderson Industries/Arizona Website Solutions. Website are proprietary to Len Anderson DBA Anderson Industries/Arizona Website Solutions., and/or its suppliers and are protected under Copyright. All rights are reserved. Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves any rights not expressly granted herein. FORCE MAJEURE If by reason of failures of telecommunications or internet service providers, labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions or other causes beyond the control of Len Anderson DBA Anderson Industries/Arizona Website Solutions., Len Anderson DBA Anderson Industries/Arizona Website Solutions. is unable to perform in whole or in part its obligations as set forth in this Agreement, then Len Anderson DBA Anderson Industries/Arizona Website Solutions. shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make Len Anderson DBA Anderson Industries/Arizona Website Solutions. liable to the User. GOVERNING LAW Arizona law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction's laws. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and cost and expenses incurred, subject to the Limitation of Liabilities clause. The parties consent to the exclusive jurisdiction and venue of the courts of the State of Arizona or to any Federal Court located within the State of Arizona. ARBITRATION Any legal controversy or legal claim arising out of or relating to this Agreement or our services shall be settled by binding arbitration before the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Arizona, as the parties to this agreement agree to be governed by the laws of Arizona. Either party may seek any interim or preliminary relief from a court of competent jurisdiction in Arizona necessary to protect the rights or property of party pending the completion of arbitration. The prevailing party from arbitration shall be entitled to reasonable attorney's fees, which shall be set forth by the arbitrator(s). Judgment upon the award rendered may be entered in any court in the state of Arizona with jurisdiction. The decision of the arbitrator shall be final and binding on the parties. The parties shall bear equally all fees, costs and expenses of the arbitration, and each party shall bear its own legal expenses, attorneys fees, and costs of all experts and witnesses, provided, however, the arbitration panel may apportion between the parties, as said arbitrator may deem equitable, the cost incurred by either party. SEVERABILITY If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely - warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment. INDEMNIFICATION You agree to defend, indemnify and hold harmless Len Anderson DBA Anderson Industries/Arizona Website Solutions. against any and all claims, losses, penalties, causes of action, damages, liability, costs, expenses (including but not limited to reasonable attorneys' fees) or claims caused by or resulting indirectly from your use of the service, without limitation or exception, including your violation of any third-party's rights, (including, without limitation, infringement of any copyright trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with Len Anderson DBA Anderson Industries/Arizona Website Solutions.. ASSIGNMENT In the event of a merger or consolidation of Len Anderson DBA Anderson Industries/Arizona Website Solutions., the surviving or new corporation and any subsidiaries are similarly subject to the rights and obligations of this Agreement. ENTIRE AGREEMENT Unless otherwise specified herein, this Agreement constitutes the complete and exclusive statement of the Agreement between the parties regarding the products and services provided hereunder, and supercedes any prior Agreements between the parties with respect thereto. WAIVER The failure of Len Anderson DBA Anderson Industries/Arizona Website Solutions. to enforce a provision of this Agreement shall not be construed as a waiver or limitation of Len Anderson DBA Anderson Industries/Arizona Website Solutions.'s right to subsequently enforce and compel strict compliance with every provision of this Agreement. Len Anderson will enforce none or all of this agreement on his sole depression MODIFICATION OF TERMS Len Anderson DBA Anderson Industries/Arizona Website Solutions. reserves the right to modify this policy at any time and without advance notice, effective upon making the modified provisions available on the Len Anderson DBA Anderson Industries/Arizona Website Solutions. Website. You are responsible for regularly reviewing these documents. Continued use of the Len Anderson DBA Anderson Industries/Arizona Website Solutions. Services after any such changes shall constitute your consent to such changes. Len Anderson DBA Anderson Industries/Arizona Website Solutions. does not and will not assume any obligation to notify you of any changes to the Terms of Service. IF you do not agree with modified terms that are either conveyed verbally or found here, your only remedy is to cancel service under the requirements therein. SERVICES OFFERED There are 4 types of services offered. 1. Retainer- if you are on a retainer program, you will pay a pre-established amount and retain a given number of hours by Len Anderson. It is understood that customers on retainer get absolute priority service, at any and all times. If the retained number of hours is exceeded then Len Anderson reserves the right to bill for the excess. Under a retainer program, Len Anderson acts as a "private contractor" to your company, and is under the same sort of supervision and expectation set as an employee. There are, however, absolutely no promised work, or guarantees in this program. Each month you are simply on retainer (pre paid) , or you are not. When you are not then you default to "dollar per hour" below. Either Len Anderson or you may terminate this retainer at any time, with or without notice. Len Anderson will be responsible for "to do" items while retainers are in place, but when the retainer program is cancelled then any and all want list items either directly asked for, expected or construed, are dropped. 2. "Project Basis"- in this program, you can define an exact project, with exact expected goals and "want list" items, and if these items are not finished you may withhold payment until you are satisfied. In this program you will be required to pay 50% up front, and the remainder upon completion. There could be an unlimited number of custom agreements between you and Len Anderson under this program, if there is such an agreement then it supercedes what is covered here. 3. "Dollar per hour"- This is plain and simply exactly what it says. You engage Len Anderson for hours, you pay dollars. THere is no guarantee of any sort, no expected end result and no warranty of any kind. If the time is unproductive, for any reason, you are still billed. If Len Anderson has to work with 3rd parties, discuss matters with you, or perform actions as a result of your requests, then it is considered billable time. THIS INCLUDES COLLECTION WORK. Hours are billed in minimum half-hour increments so it is in your best interest to ask for items in concise, carefully managed lists, and not micro-requests. How you use this billable time, by the requests you make, is solely up to you. If you want direct "to-do list" accountability, then you need to move to #1 or #2 above. 4. Web Hosting- Web hosting is provided on a year-by-year or monthly basis, fees are paid up front. SPELLING Spelling, punctuation and grammar, for the purposes of this document, are irrelevant. Go t o school if you are interested in these things. USE CONSITUTES ACCEPTANCE By using a web server run out of Len Anderson's server, or by using any of Len Anderson's services as outlined above, you demonstrate acceptance of these terms. IF YOU DO NOT agree to these terms, then it is your sole responsibility to cancel service as outlined above. If, in a state of dissatisfaction, you fail to cancel, then you still accept these terms. Your ONLY REMEDY as outlined above is to cancel, elegantly. There is NO appeal or protest process, either expressed or implied.