This is an agreement between HiFormance LLC and the users of HiFormance LLC products and services. In this agreement, “You” and “Your” refer to you or any agent, employee, servant or person authorized to act on your behalf. “We”, “Us” and “Our” refer to HiFormance LLC. This agreement explains our obligations to you, and explains your obligations to us for various services offered by HiFormance LLC. When you use your account or permit someone else to use it, or when you purchase or otherwise acquire access to HiFormance service(s) or products, or when you cancel your HiFormance services (even if we were not notified of such authorization), this agreement applies.
You agree that HiFormance may modify this agreement and the services it offers to you from time to time. You agree to be bound by any changes HiFormance may reasonably make to this agreement when such changes are made. If you have purchased services or products from HiFormance, the term of this agreement shall continue in full force and effect for as long as you take advantage of and use our products or services.
Additional Policies and Agreements
By using our services, you also agree to the following policies, which are an extension of the present agreement:
- Acceptable Use Policy
Eligibility, Information Accuracy, and Account Ownership
- Legal Age. You attest that you are of legal age to enter into this agreement.
- Accurate Information. You agree to maintain accurate information by providing updates to HiFormance, as needed, for as long as you use our services. You agree you will notify HiFormance within five (5) business days when any change of the information you provided as part of the application and/or registration process changes. Failure by you, for whatever reason, to respond within two (2) business days to any inquiries made by HiFormance to determine the validity of information provided by you will constitute a material breach of this agreement. If you provide any information that is inaccurate, not current, false, misleading or incomplete, or if HiFormance has reasonable grounds to suspect that your information is inaccurate, not current, false, misleading or incomplete, HiFormance has the absolute right, in its sole discretion, to terminate services and close your account.
- Account Use and Ownership. You agree to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. You are responsible for the security of your password. HiFormance will not change passwords to any account without proof of identification, which is satisfactory to HiFormance, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes you, you understand that HiFormance will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will HiFormance be liable for any losses incurred by you during this time of determination of ownership, or otherwise. You agree to indemnify and hold harmless HiFormance from any and all claims arising from such ownership disputes.
- Fraud Prevention. HiFormance reserves the right to screen all orders for potential fraud or abuse. Should an order become flagged by any automated system as fraud or abuse it shall be the customer’s responsibility to contact HiFormance to resolve the issue. HiFormance shall be in no way liable for orders which are delayed because of fraud/abuse prevention. HiFormance reserves the exclusive right to deny an order or purchase at any time, including suspending or revoking a purchase or order after it has been delivered, should HiFormance believe that the order is fraudulent or dangerous to its network.
- Storage and Security. At all times, you shall bear full risk of loss and damage of your server and all of your server content. You are entirely responsible for maintaining the confidentiality of your password and account information. You acknowledge and agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to your server content; (ii) maintain independent archival and backup copies of your server content; (iii) ensure the security, confidentiality and integrity of your server content transmitted through or stored on HiFormance servers; and (iv) ensure the confidentiality of your password. HiFormance ’s servers are not an archive and HiFormance shall have no liability to you or any other person for loss, damage or destruction of any of your content. The services offered by HiFormance are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. HiFormance shall have no liability to you or any other person for your use of HiFormance products and/or services in violation of these terms.
- Resource Allocation. It is acknowledged that any single account is entitled to utilize the server resources, within reason, up to what is allotted or by what is physically available. If resources become scarce, HiFormance reserves the right to limit users of the affected machine to a lower limit to preserve the effectiveness of the service for all users. If a particular user is in extreme excess of what the average users of the machine have in use (actually used) of their resource allotments, that customer may be asked to remove content, cut resource usage, or relocate to a higher resource plan. This policy only applies to servers that are considered to be abusive in service, disk space or resource consumption and where it is evident that the Acceptable Usage Policy of resources among customers has been breached, particularly in regards to disk space, bandwidth or CPU processing power utilization.
HiFormance may at its discretion choose to throttle or limit network throughput on its services in relation to the allotted resources purchased by the customer in order to ensure network stability for all customers. HiFormance does not and cannot guarantee network speeds or latency at any point in time.
- Disclosure of Information. HiFormance may disclose any subscriber information or other details to law enforcement agencies, fraud prevention/tracking databases, financial institutions, or other organizations as it sees fit without further consent or notification to the subscriber upon lawful request from such agencies or as deemed necessary by us. Such agencies or organizations will receive the full cooperation of HiFormance in the event a claim or investigation is required.
- Unmanaged Services. You agree and accept that unless otherwise explicitly noted all services provided by HiFormance are considered “unmanaged” and HiFormance is under no obligation to assist the customer with operating system, software, or other configuration or maintenance tasks beyond ensuring that the customer’s basic services such as network and power is online.
- Premium Support and Managed Services. HiFormance has the right to bill for premium support and/or managed services at $80/hour billed per 15 minutes. Managed services are defined as services or products offered to a customer which are maintained, updated, secured or otherwise cared for by HiFormance’s staff or employees. Our packages are non-managed unless stated otherwise.
HiFormance reserves the right to impose the following regulations, rules and stipulations on all premium support or managed services:
- Refuse to grant or otherwise restrict, revoke, disable or modify customer access, permissions, logins, or root access to any part of the service at any time for any reason
- Change, modify, add, or remove software, settings, configurations, or other items with or without notifying the customer at any time for any reason.
- Other items at HiFormance’s discretion not listed above.
Should you choose to make use of our paid “Premium Support” service, you agree to the following:
- For the following technologies, managed level of support will be provided assuming that there have been no major software modifications (for example, modified kernels), and that the software is running a reasonably up-to-date version that hasn’t reached its end-of-support point:
- CentOS or Ubuntu/Debian
- For the following CMS systems, basic levels of troubleshooting and assistance will be provided. Up-to-date versions and no major code modifications are expected in order to offer this troubleshooting service:
- For all other technologies, we are committed to performing basic troubleshooting when possible. However, we cannot guarantee resolution of the issue at hand.
All software for which support is desired should be setup and maintained in line with the recommendations of the vendor. Failure to follow vendor recommended specifications or other published requirements may inhibit our ability to support the item.
It shall also be up to HiFormance to determine what services it terms as managed and what is considered unmanaged. Should the actions of a customer using a managed service result in an issue which burdens HiFormance’s staff in having to repair the issue, HiFormance reserves the right to charge up to $80 USD an hour for technician’s time, in 15-minute increments. It shall be up to the managing team member of HiFormance to determine when and why technician time fees apply in addition to any regular managed service fees.
Rules of Conduct
- Abuse of Services. HiFormance reserves the right to actively monitor its network using any methodology or technology available to it to ensure that its services are not being abused. Should abuse be detected, abuse being defined as services being used in any manner in violation of this agreement, our Acceptable Usage Policy, or in any action determined to be abusive in nature at our sole discretion, HiFormance, may choose to limit, suspend, terminate, or otherwise modify a customer’s service. Detailed definitions of what constitutes abuse and associated procedures are found in our Acceptable Usage Policy.
- Support Services and Customer Conduct. HiFormance agrees to support your account as a customer to the best of its abilities within the terms outlined in the present agreement and expects customers to conduct themselves in an appropriate manner. Verbal or written abuse, including but not limited to (i) Swearing, cussing, use of profanity, aggressiveness or (ii) use of all capital letters in an effort to shout or intimidate any HiFormance representative, agent, or employee will result in a warning and termination of the communication by the representative. It shall be up to the sole discretion of HiFormance to determine abuse behavior. Failure to cease any abuse will result in immediate account termination without refund.
- Legal Usage. All of HiFormance’s web hosting and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Violations of these or any other provisions of this agreement may result in termination of the services provided by HiFormance, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of HiFormance based upon the severity of the violation. HiFormance reserves the right to refuse service if any of the content within, or any links from, the Account Holder’s website is deemed illegal, misleading, or obscene, or is otherwise in breach of HiFormance ’s then current Acceptable Use Policy, in the sole and absolute opinion of HiFormance.
- Safe Use. You agree not to harm HiFormance, its reputation, computer systems, programming and/or other persons using HiFormance’s services. HiFormance reserves the right to select the server in which the Account Holder will be hosted. A failure by you to agree to and comply with the terms of this provision may result in the termination of the services provided to you without any refunds of the unused prepaid portion of service fees.
- Third Party Content. Should you choose to sell or resell advertising or web space to a third party then you will be responsible for the contents of that advertising and the actions of that third party. HiFormance has the absolute right to reject any advertising or any other third party content that is illegal, offensive or otherwise in breach of HiFormance’s Acceptable Usage Policy. Such content may result in the suspension or in the immediate termination of your account.
Payments and Billing
- Rates and Prices. You acknowledge that the nature of the service furnished and the rates and charges have been communicated to you. You are aware that HiFormance reserves the right to change the rates and charges specified in "Other Fees".
- Payments. You agree to pay HiFormance at the time you order. All fees are due immediately and are non-refundable, with the exceptions outlined in the section below, even if your services are suspended, terminated, or transferred prior to the end of the term of service. HiFormance expressly reserves the right to modify pricing through email notification and/or notice on its website.
- Billing. Your billing renewal date will be determined based on the day of the month you originally purchased the products or services. All of HiFormance’s services are billed recurrently for an indefinite period of time unless explicitly noted as a one-time fee, and will continue to be billed until the product or service is formally canceled. If for any reason HiFormance is unable to charge your account for the full amount owed, or if HiFormance is charged a penalty for any fee it previously charged to you, you agree that HiFormance may pursue all available remedies in order to obtain payment.
If you pay by credit card and if for any reason HiFormance is unable to charge your credit card with the full amount of the services provided, or if HiFormance is charged back for any fee it previously charged to the credit card you provided, you agree that HiFormance may pursue all available remedies in order to obtain payment. You agree that among the remedies HiFormance may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice of any domain names or products and/or services registered or renewed on your behalf. HiFormance reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular services, including additional costs that it may incur in providing the services and pass these costs along to you. HiFormance is not responsible for cancelling recurring PayPal or other payment service subscriptions created by the customer. Should the customer fail to cancel a subscription it shall be non-refundable. Recurring payments made after account cancellation may be placed as service/account credit to be used for future HiFormance services, at the sole discretion of HiFormance.
- Account Cancellation. HiFormance will host an account for you corresponding with the purchased, leased or provided domain name(s) and for the period of time corresponding with the payment plan chosen by you. The contract will automatically renew at the end of the billing cycle unless otherwise specified by you. You agree that you will be responsible for notifying HiFormance should you desire to terminate your use of HiFormance’s services. Notification of your intent to terminate must be provided to HiFormance no later than three days prior to your billing date. Unless an explicit confirmation is sent by HiFormance confirming the cancellation of the service, the account shall be considered ACTIVE. Any account will be liable to the pre-agreed monthly charges until HiFormance confirms the cancellation request sent by you. Once an account cancellation request is received and we process the request as per the account holders consent, the agreement between you and HiFormance is officially terminated. We reserve the right to remove the account from the web server at any time thereafter. HiFormance will not host a server for any time period left once the cancellation request has been received and processed. It is your responsibility to make sure that you and your respective clients have access to all their files and relevant data before initiating the cancellation request. HiFormance shall not be responsible for any loss of data once the account’s recurring billing subscription has been cancelled.
For your convenience and continuous subscription benefits as a customer, if a payment is not received on the scheduled billing date and you have not formally canceled the account, you authorize us to continue billing through any available billing method on file indefinitely, until we are notified by you or the credit card company that the account is no longer valid.
Legal Liability and Indemnification
- Limitation of Liability; Waiver and Release. The services offered by HiFormance are being provided on an “as is” basis and HiFormance expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, HiFormance expressly does not warrant that HiFormance’s products and/or services will meet your requirements, function as intended, or that the use of the provided services will be uninterrupted or error free. In no event shall HiFormance be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the services, even if HiFormance is aware of or has been advised of the possibility of such damages.
- Indemnification. Accordingly, you for yourself and all of your heirs, personal representatives, predecessors, successors and assigns, hereby fully releases, remises, and forever discharges HiFormance and all affiliates of HiFormance, and all officers, agents, employees, and representatives of HiFormance, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the products and services and your acquisition and use thereof, including, but not limited to, the provision of the HiFormance products and/or services by HiFormance and its agents and employees. Further, you agree to defend, indemnify and hold HiFormance harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by you, or any allegation that your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of you elsewhere. Should HiFormance be notified of a pending law suit, or receive notice of the filing of a law suit, HiFormance may seek a written confirmation from you concerning your obligation to defend and/or indemnify HiFormance. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that HiFormance shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify HiFormance of any such claim promptly in writing and to allow HiFormance to control the proceedings. You agree to cooperate fully with HiFormance during such proceedings.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over HiFormance, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, HiFormance may immediately terminate this agreement.
- Notices. You agree that any notices required to be given under this agreement by us to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
- Final Agreement. This agreement, together with all modifications and appended documents, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. This agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
- No Agency Relationship. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Waiver. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- Enforceability. In the event that any provision of this agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
- Assignment. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this agreement, whether by attachment, levy, garnishment or otherwise, renders this agreement voidable at our option.
- Headings. The section headings appearing in this agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
Last updated June 1, 2018