TERMS OF SERVICE

Quick Links:

• Domain Registration Agreement
• Privacy Notice
• Acceptable Use Policy
• Payments and Billing - To ensure uninterrupted service, your Services will automatically renew up to fifteen (15) days prior to the end of your then current Term. This section provides further information about Arvixe's payments, billing and autorenewal policy.
• Refund Policy and Billing Disputes - This section describes the Money-Back Guarantee and Arvixe's policy on issuing refunds.
• Termination of Services - Arvixe offers hosting plans for a fixed period of time that you select upon purchase (e.g. 1 month, 1 year, etc.). Even though we do not want you to, we know that one day you might want to leave Arvixe. You can cancel your account at any time by following the process described here.
• Resource Usage - Customers are required to utilize server resources in accordance with these Terms of Services, including the Acceptable Use Policy incorporated herein. Excessive use of server CPU and memory resources by a customer can interfere with or prevent normal service performance for other customers. Additional information about Arvixe's policy on Resource Usage can be found here.
• Bandwidth Usage - This section describes Arvixe's policy on Bandwidth Usage in more detail.
• Uptime Guarantee - Arvixe guarantees that its shared servers will be accessible 99.9% of the time in any given calendar month. This section explains Arvixe's uptime guarantee and how to request a credit if Arvixe fails to meet its uptime guarantee.
• HIPAA Disclaimer - Arvixe's services do not comply with the U.S. Health Insurance Portability and Accountability Act ("HIPAA"). This section describes Arvixe's policy on HIPAA in more detail.
• Arbitration - This section describes Arvixe’s arbitration requirements and procedures in more detail.

These Terms of Service (the "Agreement") are an agreement between Newfold Digital, Inc. doing business as Arvixe ("Arvixe") and you ("Customer," "you," "your" or the "Company"). This Agreement sets forth the general terms and conditions of your purchase and use of the products and services provided by Arvixe and of the Arvixe website (collectively, the "Services"). By purchasing and/or using the Services, you agree to be bound by this Agreement.

We may change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the Arvixe website for at least thirty (30) days and will indicate at the top of this Agreement the date this Agreement was last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services.

1. Policies

The use of the Services is also governed by the following policies, which form part of this Agreement. By using the Services, you are also agreeing to the terms of the following policies:

• Privacy Notice
• Acceptable Use Policy
• Copyright Claims Policy
• Data Request Policy
• Anti-Spam Policy
• Domain Registration Agreement

Additional terms may apply to certain Services you purchase or receive through Arvixe including services provided by a third party. Such additional or third party services may be subject to additional terms that may be separately provided to you.

2. Account Eligibility, Ownership and Services Purchased

1. The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Services by anyone under eighteen (18) is unauthorized and in violation of this Agreement. By registering for or using the Services, you represent and warrant that you are eighteen (18) years of age or older.
2. We treat the individual or entity named in our records as the primary billing contact as the owner of the account. If you use the Services on behalf of another party, company or other organization, you represent and warrant that you are authorized to bind such party, company or organization to this Agreement and to act on behalf of such party, company or organization with respect to any actions you take in connection with the Services.
3. You agree to (i) provide accurate, current and complete information about you and your organization (if applicable) as prompted by the registration forms ("Registration Data"); (ii) maintain the confidentiality of your password and other information related to the security of your account; (iii) maintain and promptly update the Registration Data and any other information you provide to Arvixe, to keep such information accurate, current and complete; and (iv) be fully responsible for all use of your account and for any actions that take place through your account.
4. You acknowledge and accept that despite the security measures Arvixe takes in connection with the Services, Arvixe's system and/or your websites may nonetheless become compromised, including without limitation, by hackers, Internet viruses, worms or Trojan horses, or the like. Under such circumstances, Arvixe may take corrective action as it deems appropriate in its sole discretion and you acknowledge and agree that Arvixe shall have no liability to you for any damage or loss that you may incur due to such corrective action.
5. You further acknowledge and agree that you are solely responsible for backing-up all Customer Content (as defined in Section 13).
6. The Services offered by Arvixe are hosted on servers located in the United States (U.S.) unless otherwise expressly provided. By using the Services, you freely and specifically give Arvixe your consent to export your information and data to the U.S. regardless of where your Services or domains are hosted. You understand that data stored in the U.S. may be subject to lawful requests by the courts or law enforcement authorities in the U.S.
7. Any features and details of the Services may be described on the web pages setting out the particular Services you have purchased. Arvixe may modify, change or discontinue any aspect of the Services at any time.
8. Certain Services are provided by third parties and may be subject to such third parties' terms and conditions.

3. Term of the Services

The initial term of the Services you purchase shall be for the period set forth in the registration form presented to you when you order the Services (the "Initial Term"). Unless you cancel prior to the end of the Initial Term, the Services will automatically renew for periods of equal length as the Initial Term (each a "Renewal Term") unless otherwise provided. The Initial Term and all Renewal Terms, if any, shall be collectively referred to as the "Term."

4. Payments and Billing

1. Unless otherwise provided, Arvixe will automatically bill your payment method on file as follows: (i) up to fifteen (15) days prior to the end of your then current Term for all Services on a one (1) year plan or longer; (ii) up to five (5) days prior to the end of your then current Term for plans of less than one (1) year. You expressly acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file for each Renewal Term, unless you terminate or cancel the Services prior to such charge as provided in this section..All fees are billed in United States Dollars ("USD") and are subject to change with prior notice to you. We will provide you with at least thirty (30) days' notice of your renewal pricing before charging you on any annual or longer term plans.
2. The advertised fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services provided hereunder. All such taxes may be added to Arvixe's invoices for the fees as separate charges to be paid by you.
3. Arvixe is only able to automatically collect payment from customers with credit cards stored on file or active PayPal agreements. All other payment methods (e.g. one- time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by you. It is your responsibility to ensure that all fees are paid no later than their due date.
4. As a customer of Arvixe, it is your responsibility to ensure that all billing information on file with Arvixe is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. Arvixe screens all orders for fraud. In certain cases, if your account is flagged for fraud, your order will not be processed. Arvixe has no liability for not providing Services, including third party services, if your account fails the fraud screen.

5. Late Payments

1. Any account not paid in full by the end of the Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, Arvixe reserves the right to suspend your Services. Arvixe reserves the right to terminate Services forty-five (45) days following suspension of Services for non-payment.
2. Arvixe is not responsible for any damages or losses (including of any data) as a result of suspension or termination for non-payment of your account. In addition, Arvixe reserves the right to refuse to re-activate your Services until any and all outstanding invoices have been paid in full.

6. Refund Policy and Billing Disputes

1. Arvixe provides a fortyfive (45) day money back guarantee on shared web hosting and reseller packages as well as VPS hosting (the "Money-back Guarantee Refund"). To request a Money-back Guarantee Refund, please visit http://support.arvixe.com to create a support ticket to our billing department or contact Arvixe (the "Refund Request") within sixty (60) days of your termination or cancellation of the account (the "Notice Period"). Money-back Guarantee Refunds will not accrue, and shall not be paid under any circumstances, if you do not provide the applicable Refund Request within the Notice Period. Money-back Guarantee Refunds only apply to hosting services.
2. Fees paid by you in connection with the purchase of add-on services, including without limitation, secure socket layer (SSL) certificates, custom packages, domain transfers, domain renewals, dedicated IP addresses, or software licenses are non-refundable under this Agreement, as are payments made by check ten dollars ($10.00) or less due to processing fees, unless otherwise expressly provided. There are no refunds on dedicated servers. The Money Back Guarantee does not apply to dedicated servers.
3. Only first-time shared hosting accounts are eligible for the Money Back Guarantee Refund. For example, if you previously had or still have an account with Arvixe and you canceled and signed up again for a new account, you will not be eligible for a refund. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement. The following methods of payment are not refundable under any circumstances: bank wire transfers, Western Union payments, checks, and money orders. If you pay with any of these methods, you will receive a credit to your account for current or future Services.
4. Refunds will be issued only to the payment method used for the initial purchase.
5. Arvixe will not process new orders or provide additional Services to customers who have an outstanding balance with Arvixe.
6. Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. Arvixe is not responsible for any change in exchange rates between the time of payment and the time of refund.
7. If you believe there is an error in Arvixe's billing, you must contact Arvixe, within thirty (30) days of the date you are billed or charged. Arvixe's obligation to consider your claim is contingent on you providing Arvixe with sufficient facts to investigate your claim. If Arvixe determines that your claim is valid, Arvixe agrees to credit your account on your next billing date. You waive your right to dispute any charges or fees if you fail to notify Arvixe in writing within thirty (30) days.

7. Chargebacks, Reversals, and Retrievals

If you have a billing issue, please contact Arvixe to address and resolve the issue. If Arvixe receives a chargeback or payment dispute from a credit card company or bank, your Services may be suspended without notice. Any outstanding balances accrued as a result of the chargeback(s) must be paid in full before Services will be restored.

8. Termination of Services

1. You may terminate the Services by submitting a cancellation request in writing by logging into Arvixe's account center located at https://customers.arvixe.com. In the event that you are unable to log in to your account with Arvixe, please contact our billing department and we will assist you.
2. Cancellations must be requested via the form indicated above at least forty-eight (48) hours prior to the Service's renewal date. If a cancellation notice is not received within the required time frame, you will be billed for the next billing term and are responsible for payment as set forth above.
3. Arvixe reserves the right to terminate any account that has been in a suspended or deactivated state for thirty (30) days which will result in the loss of all data stored on the account.
4. Arvixe may terminate this Agreement at any time without notice. Should Arvixe terminate this Agreement for any reason other than a breach of this Agreement, including any violation of the Acceptable Use Policy, all prepaid fees will be refunded.

9. Refusal of Service

1. Arvixe reserves the right to refuse Services to anyone at any time. Any material that, in Arvixe's judgment, is obscene, threatening, illegal, or violates this Agreement in any manner may be removed from Arvixe's servers (or otherwise disabled), with or without notice.
2. Any manner of communication with Arvixe's staff that is belligerent, vulgar (curse words), highly rude, threatening, or abusive, as determined in Arvixe's sole discretion, may result in suspension or termination of your account without any refund.

10. Prohibited Persons (Countries, Regions, Entities, and Individuals)

The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury's Office of Foreign Assets Control ("OFAC"), Department of State, and other United States authorities (collectively, "U.S. Trade Laws"). You may not use the Services to export or reexport, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, North Korea, or the Crimea, the Donetsk People’s Republic, or the Luhansk People’s Republic regions of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, Arvixe also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name ("ccTLD") for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.

11. Resource Usage

1. You are required to utilize server resources in a responsible manner. Server CPU, Memory and Disk space are resources shared by all Arvixe customers. Excessive use of server CPU and memory resources by a customer can interfere with or prevent normal service performance for other customers.
2. Arvixe reserves the right to suspend or terminate Services on any account that, in its sole discretion, is abusing server resources or is in violation of Arvixe's Acceptable Use Policy. Such suspension or termination can occur at any time without prior notice.
3. Shared & Reseller hosting space may only be used for web files, active email and Customer Content (as defined below). Shared & Reseller hosting space may not be used for storage (whether of media, emails, or other data), including, as offsite storage of electronic files, email, or FTP hosts. Arvixe expressly reserves the right to review every shared account for excessive usage that may be caused by a violation of this Agreement.
4. Dedicated and VPS usage is limited by the resources allocated to the specific plan that you have purchased. Dedicated servers are NOT backed up by us. It is your responsibility to maintain backups.
5. cPanel Accounts for Virtual Private Servers (VPS), Dedicated Servers, and Shared Reseller. Arvixe reserves the right to restrict the number of cPanel accounts and/or terminate any excessive cPanel accounts as determined in Arvixe’s sole discretion. Customers who exceed Arvixe’s limit for cPanel accounts may be charged for additional cPanel accounts.

12. Bandwidth Usage

1. If you are allocated a monthly bandwidth allowance and your account exceeds the allocated amount, Arvixe may: (i) suspend your account until the start of the next allocation; or (ii) suspend the account until more bandwidth is purchased for an additional fee.
2. Unused bandwidth in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts.

13. Customer Content

1. Arvixe allows you to upload, publish, display and distribute information, text, photos, videos and other content on or through the Services (referred to as "Customer Content"). Customer Content includes any content posted by you and users of any of your websites created or hosted through the Services. You are solely responsible for any and all Customer Content and any transactions or other activities conducted on or through your websites. By posting or distributing Customer Content on or through the Services, you represent and warrant to Arvixe that (a) you have all necessary rights to post or distribute such Customer Content, and (b) your posting or distribution of such Customer Content does not infringe or violate the rights of any third party.
2. You acknowledge and agree that Arvixe may, but is not obligated to, monitor Customer Content for any violations of this Agreement and may immediately take any corrective action in Arvixe's sole discretion, including without limitation, removal of all or a portion of the Customer Content, and terminating any and all Services without a refund of any pre-paid fees. You hereby agree that Arvixe shall have no liability due to any corrective action that Arvixe may take, including without limitation, suspension or termination of the Services.

14. Licenses

1. Arvixe grants you a non-exclusive, non-transferable, worldwide, license to use technology provided by Arvixe solely to access and use the Services during the Term. Except for the rights explicitly granted herein, this license does not grant any additional rights to you. All right, title and interest in Arvixe's technology shall remain with Arvixe, or its licensors. You are not permitted to circumvent any devices designed to protect Arvixe, or its licensor's ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
2. Solely for the purpose of providing the Services, you grant Arvixe, or any third parties used by Arvixe to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your end users, including without limitation Customer Content. This license terminates on the expiration or termination of the Term, unless earlier terminated as provided herein. All right, title and interest in your technology shall remain with you, or your licensors.

15. Service Modifications

Arvixe reserves the right to modify, change or discontinue any aspect of the Services at any time. However, Arvixe will provide you with advance notice of any material changes to the Services so you have an opportunity to cancel if you do not agree with any such changes. Arvixe is not responsible for any damages or loss of data resulting from such action.

16. Uptime Guarantee

1. Arvixe guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month (the "Uptime Guarantee"). This guarantee does not apply to unmanaged virtual private servers ("VPS") or unmanaged dedicated server plans. If Arvixe fails to meet its uptime guarantee, you will be issued a credit equivalent to one (1) month of Services. The first forty five (45) minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of Services. This uptime guarantee does not apply to planned maintenance. Approval of any credit is at the sole discretion of Arvixe and may be dependent upon the justification provided. To request a credit, please visit http://support.arvixe.com to create a support ticket to our billing department with justification within thirty (30) days of the end of the month for which you are requesting a credit.
2. Credits are only available for future Services and cannot be issued as refunds.
3. The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attacks, hardware failure, third-party software failure, Customer maxing its resource container, issues resulting from errors or omissions by the Customer, issues relating to the Customer's ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are issued at the discretion of Arvixe, based on its investigation of any issue that is covered by this section.
4. If Arvixe provides an Uptime Guarantee for a particular Service, a credit shall be your sole and exclusive remedy for defects in, or issues with, such Service.

17. Support Policy

Arvixe provides support via LiveChat and tickets for the purpose of assisting with basic questions regarding the Services.

18. Resellers

Resellers are responsible for supporting their own customers. Arvixe does not provide support to its resellers' customers. If a reseller's customer contacts Arvixe, Arvixe will direct the customer to the reseller. All support requests must be made by the reseller on its customer's behalf. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their customers. Arvixe will hold a reseller responsible for any of its customers' actions that violate the law, the terms of this Agreement, or the Acceptable Use Policy.

19. Backup

Your use of the Services is at your own risk. Arvixe is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred through your account and to maintain all backup of Customer Content stored on Arvixe's servers including without limitation your website files.

20. IP Address Allocation

Any dedicated IP order, in addition to what is provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with the policies of American Registry for Internet Numbers ("ARIN") or other applicable registry. Arvixe reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.

21. Compliance with Applicable Law

You agree to comply with all applicable laws, rules, and regulations, including without limitation all local rules where you reside or your organization is located regarding User Content, User websites, online activities, email and your use of the Services. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Services are controlled and operated by us from our offices within the United States (although we may share data with third parties around the world to assist us in providing the Services as further described in our Privacy Notice) and we make no representation that the Services are appropriate or available for use in other locations. Those who access the Services from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Services where prohibited by law.

For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) ("GDPR") and any applicable national implementing laws in your jurisdiction, and with respect to your subscribers' or customers' personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) insofar as you may store personal data through your use of our Services only as permitted and subject to the terms of this Agreement. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).

To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process (e.g., store) such personal data on your behalf. The additional data processing terms set forth here shall apply where you are a Controller subject to the GDPR.

22. Additional Customer Obligations

1. You will cooperate fully with Arvixe in connection with Arvixe's provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for you to use the Services. Delays in your performance of your obligations under this Agreement will extend the time for Arvixe's performance of its obligations that depend on your performance.
2. You will be solely responsible for ensuring that all Customer Content and websites are compatible with the hardware and software used by Arvixe to provide the Services, which hardware and software may be changed by Arvixe from time to time in its sole discretion.
3. You will be solely responsible for backing-up all Customer Content, including any of your websites off of Arvixe's servers. This is an affirmative duty. Arvixe is not responsible for the loss of any Customer Content. Note: It is essential that Customers backup files offline.
4. You will use your best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
5. You will not use the Services in any manner, as determined by Arvixe in its sole discretion, that:
   1. Engages in or promotes illegal activity;
   2. Engages in or promotes behavior that is defamatory, harassing, abusive or otherwise objectionable;
   3. Infringes the intellectual property rights or other proprietary rights of any third party;
   4. Violates the privacy rights or publicity rights of any third party;
   5. Interferes with the operation of the Services; or
   6. Violates the terms and conditions of this Agreement or any of the policies or agreements incorporated by reference herein.

23. Disclaimer

You acknowledge and agree that any use of the Services, including any information or content obtained through the Services, is at your own risk. Arvixe disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all interruptions to the Services caused by Arvixe or our employees. You further acknowledge and agree that Arvixe exercises no control over, and accepts no responsibility for, the content of the information passing through Arvixe's host computers, network hubs and points of presence or the Internet.

24. Limitation of Liability

1. IN NO EVENT WILL ARVIXE OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY CUSTOMER CONTENT, CUSTOMER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF ARVIXE IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ARVIXE'S LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ARVIXE FOR THE SERVICES IN THE ONE (1) MONTH PRIOR TO THE INITIAL ACTION GIVING RISE TO SUCH LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

25. Indemnification

You agree to indemnify, defend and hold harmless Arvixe, its affiliates, and their respective officers, directors, employees and agents (collectively, the "Indemnified Parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any of your acts or omissions. The terms of this section shall survive any termination of this Agreement.

26. Arbitration

a.  This agreement shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. 

b.  Arvixe and you (such references include our respective subsidiaries, affiliates, predecessors in interest, successors and assigns) agree to arbitrate all disputes and claims arising out of or relating to this Agreement.

c.   A party who intends to seek arbitration must first send written notice to Arvixe' Legal Department of its intent to arbitrate ("Notice"). The Notice to Arvixe should be sent by either of the following means: (i) an email to [email protected]; or (ii) sending the Notice by U.S. Postal Service certified mail to Arvixe Hosting, Attn: Legal Department, 5335 Gate Pkwy, 2nd Floor, Jacksonville, FL 32256. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Arvixe may commence an arbitration proceeding.

d.   The arbitration shall be governed by the Consumer Arbitration Rules (the "Arbitration Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and shall be administered by the AAA. All issues are for the arbitrator to decide, including the scope of this arbitration clause, provided, however, that the arbitrator is bound by the terms of this Agreement.

e.   In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Arvixe will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If, however, the arbitrator finds that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b), then the payment of arbitration costs shall be governed by the Arbitration Rules. In such case, you agree to reimburse Arvixe for all monies previously disbursed by it that are otherwise your obligation to pay under the Arbitration Rules. If the arbitrator grants relief to you that is equal to or greater than the value of your demand, Arvixe shall reimburse you for your reasonable attorneys' fees and expenses incurred for the arbitration.

f.   You agree that, by entering into this Agreement, you and Arvixe are waiving the right to a trial by jury.

g.   If you initiate litigation or any other proceeding against Arvixe in violation of this section, you agree to pay Arvixe's reasonable attorneys' fees incurred in connection with its enforcement of this section.

h.   The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

i.   ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR ARVIXE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Further, you agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. 

27. Severability

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions shall nevertheless remain in full force and effect.

28. Assignment

Arvixe may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. You may not assign or transfer this Agreement or any of your rights or obligations hereunder, without the prior written consent of Arvixe. Any attempted assignment in violation of this section shall be null and void and of no force or effect whatsoever. This Agreement shall bind and inure to the benefit of the parties respective successors and permitted assigns.

29. Force Majeure

Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

30. Waiver

Arvixe reserves its right to take all legal steps available to enforce this Agreement. Arvixe's failure to exercise any right or remedy hereunder shall not operate as a present or future waiver of such provision or of Arvixe's rights to enforce such right or remedy in the future. No waiver of any provisions of this Agreement or any other agreement with Arvixe shall be effective unless expressly stated in writing and signed by both parties.

31. No Agency

This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

32. Survival

All provisions that by their very nature are intended to survive the termination of this Agreement shall survive termination of this Agreement, including without limitation Sections 23 through 26, and 31.

33. HIPAA Disclaimer

Arvixe is not compliant with the requirements of the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Customers acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Arvixe does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with HIPAA. Customers requiring secure storage of "protected health information" under HIPAA are expressly prohibited from using the Service for such purposes. Storing and permitting access to "protected health information," as defined under HIPAA is a material violation of this Agreement, and grounds for immediate account termination. Arvixe does not sign "Business Associate Agreements" and you agree that Arvixe is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact customer support.

34. Payment Card Industry Security Standard Disclaimer.

Arvixe complies with the Payment Card Industry Security Standard ("PCI Standard") in connection with the collection and processing of your data and billing information. However, you are solely responsible for the security of the data and billing information you collect on your website. Arvixe will not monitor your website for compliance and therefore we are not able to verify whether your website complies with the PCI Standard.

35. WordPress Plugins.

If you install or use WordPress plugins operated by Automattic on your hosting account (including, for example, Jetpack), you also acknowledge and agree to (1) the WordPress.com Terms of Service located at (https://en.wordpress.com/tos/) which apply to your use of all Automattic products and services; and (2) the Automattic Privacy Policy located at (http://automattic.com/privacy/), including without limitation, Automattic's collection of data as described therein.

Last Modified: October 01, 2024