Last updated: June 26, 2023
First of all we want to THANK all our clients for allowing us to provide Web Hosting services to you. It’s a job we take seriously and we promise to do our best to be responsive and helpful at all times. If you ever have any problems or questions we welcome your calls and emails. Thanks again!
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
The Service and its original content, features and functionality are and will remain the exclusive property of Cymax Media, LLC and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks may not be used in connection with any product or service without the prior written consent of Cymax Media, LLC.
Links To Other Web Sites
Our Service may contain links to third party web sites or services that are not owned or controlled by Cymax Media, LLC.
Cymax Media, LLC has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that Cymax Media, LLC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
We may terminate or suspend your access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You agree to defend, indemnify and hold harmless Cymax Media, LLC and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of a) your use and access of the Service, or b) a breach of these Terms.
Limitation Of Liability
In no event shall Cymax Media, LLC, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
Cymax Media, LLC its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
These Terms shall be governed and construed in accordance with the laws of Colorado, United States, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time.
By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.
If you have any questions about these Terms, please contact us.
WEB HOSTING – Terms of Service
Our web hosting and backup policy here comes down to:
1) understand that having an account means that some data that concerns you will be processed and stored (including by third parties whom we have authorized for appropriate and limited access in order to operate the account and
2) you can lose your account if you behave badly (as determined by Cymax Media.
It is understood and accepted that any fraudulent, corrupt, abusive or offensive behavior towards any of our staff, delegates or representatives in any context (whether on a website that we host, or in any other virtual or physical setting), or towards any of our computer systems or networks, or any attempts to gain unauthorized access to any part of our website(s), database(s) or other physical or virtual resources, is grounds for immediate and unilateral termination of your account (together with all associated services), without requirement for notice or refund, at our absolute and sole discretion.
Your use of Cymax Media’s Web Hosting Services is subject to the terms and conditions set forth in these Cymax Media Terms of Service (the “Agreement”). This Agreement explains (i) what’s allowed when using our Services; (ii) the rights you have as a user of our Services; (iii) the rights Cymax Media has if you do something which is not allowed when using our Services; and (iv) many other important terms. This Agreement is a legal contract between you and Cymax Media and it is important that you read it carefully. If there is anything you do not understand in this Agreement, please contact us.
For more legal details read the following:
Basic Backup Service
Our basic web hosting service includes disaster recovery backups nightly on our hosting platform only. These backups are retained for 24 hours and then replaced with the latest backup files. This is in addition to utilizing the latest in RAID-10 storage array’s on all servers to prevent data loss due to a drive failure. We also regularly run file system checks to ensure the integrity of the file system. We do not back up VPS and Dedicated Servers.
Are these backups publicly accessible?
The primary purpose of this basic backup service is to protect against total data loss due to hardware or software failure. However, in the event that you need us to recover files for you, we require a minimum fee of $50.
While we make every effort to protect your data by utilizing the latest in storage & backup technology we strongly encourage customers to take frequent backups of their files and databases using Backup tools which can be found in their cPanel within their web hosting account. For logins to the cPanel please contact Cymax Media.
Important: It is your responsibility to maintain your own backups of your website. Cymax Media offers no guarantee that our disaster recovery system and/or our automated backup system will restore your website back to the way it was or you may need it.
Snapshot Remote Website Backup Service
Cymax Media offers an optional website backup service we call the “Snapshot Remote Website Backup service” (SRWBS). SRWBS is an automated, remote, cloud-based website backup service available only to our hosted clients in order to provide an additional level of security and peace-of-mind. However, with our Snapshot backup service you get an automated, remote, cloud-based backup service backs up 3 versions of your entire website – all your website files – once per week. This way clients with this service have 3 “Snapshots” – weekly backups all on a remote server. The advantage of using a remote server are to protect in the unlikely event of a catastrophic local server event. Cymax Media maintains no guarantee that our Snapshot website service or our disaster recovery system will restore your website back to the way you may need it.
Eligibility, Registration and Account Security
This section describes the eligibility criteria we require from all of our users. When you register to use our Services (as defined below), we need to make sure that you are able to legally contract with Cymax Media, llc..
Cymax Media Services do not comply with the U.S. Health Insurance Portability and Accountability Act (“HIPAA”). This section describes our policy on HIPAA in more detail.
All Subscribers are required to comply with applicable law and have certain obligations with respect to their use of Cymax Media Services. For example, you are required to keep a backup of your data, promptly remove any malware from your account, and cooperate with Cymax Media and utilize hardware and software that is compatible with the Services.
Billing and Payment
All payments for web hosting are taken, in advance, on an annual basis.
To ensure uninterrupted service, Cymax Media Services will automatically renew on your renewal date. This section explains this process in more detail.
Term and Termination Policy
Cymax Media offers hosting plans for a fixed period of time that you select upon purchase (e.g., 1 year, 2 year, etc.). Even though we do not want you to, we know that one day you might want to leave Cymax Media. You must contact Cymax Media 30 days before the renewal and/or termination of your services.
Customers are required to utilize server resources in an efficient and responsible manner. 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 our policy on CPU, Bandwidth and Disk Usage can be found here.
Governing Law and Arbitration
This Agreement is an agreement between Cymax Media llc. (“us,” “we,” or “Cymax Media”) and you (“Subscriber” or “you” and “your”). This Agreement sets forth the general terms and conditions of your use of the products and services made available by Cymax Media and through the Cymax Media website (collectively, the “Services”). By using the Services, you agree to be bound by this Agreement. Please read this Agreement carefully.
We may in our sole discretion change or modify this Agreement at any timeAny 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 and your sole remedy is to cancel your account.
Use of the Services is also governed by the following policies and agreements, which are incorporated by reference. By using the Services, if applicable, you are also agreeing to the terms of the following policies and agreements.
Additional terms may apply to certain Services, and such additional terms will be made available to you and will be incorporated by reference with such Services.
- Acceptable Use Policy
- Domain Name Dispute Policy
- Copyright Claims Policy
- Data Request Policy
- Anti Spam Policy
- Ownership Dispute/Change Policy
- Domain Registration Agreement
- Eligibility; Registration and Account Security.
- 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.
- 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.
- You agree to (i) provide accurate, current and complete information about you and your organization (if applicable) to Cymax Media (“Registration Data”); (ii) maintain the confidentiality of your password and other information related to the security of your account; (iii) maintain and promptly update account ownership and/or contact information you provide to Cymax Media, 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.
- You acknowledge and accept that despite the security measures Cymax Media takes in connection with the Services, Cymax Media’s system and/or Subscriber Websites (as defined below) may nonetheless become compromised, including without limitation, by hackers, Internet viruses, worms or Trojan horses, or the like. Under such circumstances, Cymax Media may take corrective action as it deems appropriate in its sole discretion and you acknowledge and agree that Cymax Media shall have no liability to you for any damage or loss that you may incur due to such corrective action.
- Data Backup. Our web hosting service RAID-10 SSD storage arrays on all servers to prevent data loss due to drive failure, along with regularly running file system checks to ensure the integrity of the file system. Our web hosting clients are backed up nightly. The primary purpose of Cymax Media backups is to protect against data loss due to hardware or software failure on our end. It is not safe to rely upon Cymax Media’ backups alone. While Cymax Media makes every effort to protect your data, we strongly encourage you to create backups of your website files and MySQL databases, especially before any major software or content updates to the website. From our backups, Cymax Media does not guarantee that our disaster recovery backup system can restore your website to a specific date. You further acknowledge and agree that you are solely responsible for backing-up all your website data.
- HIPAA Disclaimer.
The Services do NOT comply with the U.S. Health Insurance Portability and Accountability Act (“HIPAA”). You are solely responsible for compliance with all applicable laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services are not appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Cymax Media 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. Subscribers requiring secure storage of “Protected Health Information” as defined under HIPAA are expressly prohibited from using the Service for such purposes. Storing and permitting access to “Protected Health Information,” is a material violation of this Agreement, and grounds for immediate account termination. Cymax Media does not sign “Business Associate Agreements,” and you agree that Cymax Media is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, please contact us by email.
- 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 re-export, or permit the export or re-export, 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, Sudan, North Korea, or the Crimea region 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, Cymax Media 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.
Except for Subscriber Content (as defined below), all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, “Cymax Media Content”), are the property of Cymax Media or its licensors. No Cymax Media Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Cymax Media Content. Any use of the Cymax Media Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to your use of the Services and the Cymax Media Content granted herein. All rights of Cymax Media or its licensors that are not expressly granted in this Agreement are reserved to Cymax Media and its licensors.
- Subscriber Content.
- You may be able to upload, store, publish, display and distribute information, text, photos, videos, emails, and other content on or through the Services (collectively, “Subscriber Content”). Subscriber Content includes any content posted by you and users of any of your websites hosted through the Services (“Subscriber Websites”). You are solely responsible for any and all Subscriber Content and any transactions or other activities conducted on or through Subscriber Websites. By posting or distributing Subscriber Content on or through the Services, you represent and warrant to Cymax Media that (i) you have all necessary rights to post or distribute such Subscriber Content, and (ii) your posting or distribution of such Subscriber Content does not infringe or violate the rights of any third party
- You acknowledge and agree that Cymax Media may, but is not obligated to, monitor Subscriber Content and may immediately take any corrective action in Cymax Media’s sole discretion, including without limitation removal of all or a portion of the Subscriber Content, and suspension or termination of any and all Services without refund of any pre-paid fees. You hereby agree that Cymax Media shall have no liability due to any corrective action that Cymax Media may take, including without limitation suspension or termination of Services.
- You hereby grant to Cymax Media, to the extent necessary to provide the Services, a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute Subscriber Content and the Subscriber Website; and (ii) make archival or back-up copies of the Subscriber Content and the Subscriber Website. Except for the rights expressly granted above, Cymax Media is not acquiring any right, title or interest in or to the Subscriber Content, all of which shall remain solely with you.
- Payment Card Industry Security Standard Disclaimer.
Cymax Media 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 Subscriber Website. Cymax Media will not monitor Subscriber Websites for compliance and therefore we are not able to verify whether your Subscriber Website complies with the PCI Standard.
- Compliance with Applicable 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.
- Additional User Responsibilities.
- You will cooperate fully with Cymax Media in connection with Cymax Media’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 Cymax Media’s performance of its obligations that depend on your performance.
- YOU are 100% liable for all content YOU store on our server/s, including the legality and preservation (i.e. making back-ups) of same.
- YOU agree not to engage in any activity that can overwhelm our servers with heavy usage, or that requires a disproportionate amount of resources of its servers, including but not limited to, highly active CGI or chat scripts or similar technology.
- You will be solely responsible for ensuring that all Subscriber Content and Subscriber Websites are compatible with the hardware and software used by Cymax Media to provide the Services, which hardware and software may be changed by Cymax Media from time to time in its sole discretion.
- You will be solely responsible for backing-up all Subscriber Content, including any Subscriber Websites off of Cymax Media’s servers. This is an affirmative duty. Cymax Media is not responsible for the loss of any Subscriber Content. Note: It is essential that Subscribers backup files offline, even if user purchases or has products, such as Site Backup and Restore.
- You will use your best efforts to ensure that the Subscriber Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
- You will not use the Services in any manner, as determined by Cymax Media in its sole discretion, that:
- Engages in or promotes illegal activity;
- Engages in or promotes behavior that is defamatory, harassing, abusive or otherwise objectionable;
- Infringes the intellectual property rights or other proprietary rights of any third party;
- Violates the privacy rights or publicity rights of any third party;
- Interferes with the operation of the Services; or
- Violates the terms and conditions of this Agreement or any of the policies or agreements incorporated by reference herein.
- Third Party Websites.
The Services may contain links to other websites that are not owned or controlled by Cymax Media (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Services or any Third Party Content posted on or made available through the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of the Third Party Sites or the Third Party Content. If you decide to access the Third Party Sites or to access or use any Third Party Content, you do so at your own risk and our terms and policies do not apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate.
- Billing and Payment.
- Fees Due. You will pay to Cymax Media all fees for the Services set forth in the registration form presented to you at the time you order the Services and for all fees for subsequent Renewal Periods at the time of renewal.
- Price Increases. Cymax Media may increase the fees for the Services (i) in the manner permitted in the applicable description of the particular Service published by Cymax Media on the Cymax Media website or in a promotional offer (the “Service Description”) and (ii) at any time on or after expiration of the Initial Term by providing thirty (30) days prior written notice to you. Written notice may be in the form of (i) notices and updates provided through the Subscriber billing tool provided as part of the Services, (ii) notices and updates otherwise provided through the Services, or (iii) notifications of pricing for renewal terms. It is your sole responsibility to periodically review billing-related information provided by Cymax Media through the Subscriber billing tool or other methods of communications and notices sent or posted by Cymax Media.
- Additional Disk Space or Bandwidth. Cymax Media may increase the fees for the Web Hosting Services in the event your website requires additional disk space, bandwidth, additional software, solutions and/or other services.
- Taxes. 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 Cymax Media’s invoices for the fees as separate charges to be paid by you. All fees are non-refundable when paid except as otherwise provided herein.
- Automatic renewals. By purchasing the Services, you agree to allow Cymax Media to place your account on a recurring payment plan. The account will automatically be re-billed according to the term length of the Services you select. This notification will be sent to the contact email address on file for the Account. In the case of insufficient funds to charge such amount, we will attempt to collect at a partial term quantity (not changing your current term) to avoid an interruption in the Services. Unless you disable the automatic renewal option, we will automatically renew the Services up to fifteen (15) days before your renewal date and will take payment from the payment method we have on file.
- Add-On Services. If you purchase certain add-on services from Cymax Media such as SSL certificates or other service/s you may be required to apply the Service to a specific domain name to begin using the Service. Cymax Media is not responsible if you fail to apply an add-on to a domain name and will not provide refunds for any purchased but unused Services.
- Failure to Pay. If you fail to pay the fees due, we may suspend or terminate your Services and pursue the collection costs incurred by Cymax Media, including without limitation, any arbitration and legal fees and Cymax Media’s reasonable attorneys’ fees. If any check is returned for insufficient funds, Cymax Media may impose a minimum processing charge of $25.00 plus any applicable taxes. Accounts will not be activated or reactivated until all outstanding amounts are paid. We are not responsible for any deleted or lost Subscriber Content that results from any suspension or reactivation. Dedicated servers are subject to being reclaimed and all content deleted if you fail to make a timely payment. If you make a late payment we do not automatically reactivate the dedicated servers. Contact Cymax Media directly after you make a late payment to reactivate the dedicated server.
- Fraud. It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. We may report all such misuses and fraudulent uses (as determined by us in our sole discretion) to appropriate government and law enforcement authorities, credit reporting services, financial institutions and credit card companies.
- Disputes. You have ninety (90) days to dispute any charge or payment processed by Cymax Media. If you have a question concerning a charge you believe is incorrect, please call us and we will investigate. Our phone number is 303 681-2020. If you initiate a chargeback, there may be a minimum charge of $25.00 plus applicable taxes to reactivate your account and we reserve the right to suspend your account for the duration of the dispute. Hosting accounts that have an open dispute may be disabled for security purposes
- Term and Termination of the Services.
- Term of Services. The initial term of the Services purchased by you will be for the time 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 or as otherwise stated in a notice sent to you at least thirty (30) days prior to the expiration of your then-current term, the Services will automatically renew for successive periods of equal length as the Initial Term (each a “Renewal Period”). You acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file up to fifteen (15) days prior to the end of each Renewal Period, unless you terminate or cancel the Services prior to such charge as provided in this section. The “Term” of this Agreement shall include the Initial Term and all Renewal Periods, if any.
- Termination Procedure. You may terminate or cancel the Services you purchased at any time during the Term by giving Cymax Media notice by phone at 303 681-2020 or chat. The cancellation request is subject to verification of ownership of the account and/or domain, as determined in Cymax Media’s sole discretion. In the event of such cancellation, you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation subject to the terms of the thirty (30) day money-back guarantee if applicable. After the account is canceled, all Subscriber Content will be permanently removed from the server. Please make a backup of all Subscriber Content before you contact Cymax Media to cancel your account.
- Disabling automatic renewal option. Subscriber must notify Cymax Media at least sixteen (16) business days prior to the Services or domain renewal date to disable the automatic renewal option. Such notification may be by email, phone at 303 681-2020, online chat. This request must include verification of ownership of the account and/or domain(s), as determined by Cymax Media in its sole discretion.
- Domain Parking. If the account is downgraded to a free domain parking account, all Subscriber Content will be permanently removed from the server. Please make a backup of all Subscriber Content before you disable auto renewal. So long as your Account remains active, other products and services on the Account such as domain names or Domain Privacy will continue to auto renew unless you cancel them.
- Termination by Cymax Media. Cymax Media may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due hereunder to Cymax Media; (ii) you violate the terms and conditions of this Agreement; (iii) your conduct may harm Cymax Media or others, cause Cymax Media or others to incur liability, or disrupt Cymax Media’s business operations (as determined by Cymax Media in its sole discretion); (iv) you are abusive toward Cymax Media staff in any manner; or (v) for any other lawful reason or as otherwise specified in this Agreement. In such event, Cymax Media will not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.
- Modification of Services. Cymax Media reserves the right to modify, change, or discontinue any aspect of the Services at any time.
- Relationship. Cymax Media may terminate our relationship for any reason including the Client’s failure to make payment as required by this Agreement or any other act or circumstance which in the sole discretion of Cymax Media adversely affects our working relationship.
- Data Deletion. Upon termination of the Services for any reason, Subscriber Content, Subscriber Websites, and other data will be deleted. You should always maintain back-up copies of all Subscriber Content, Subscriber Websites, and other data. Cymax Media is not responsible for the loss of any Subscriber Content. It is essential that Subscribers backup files offline, even if user purchases or has products, such as Site Backup and Restore.
- 30 Day Money-Back Guarantee
- If you purchase an account with a thirty (30) day money-back guarantee, you may receive a full refund of all basic hosting fees paid (the “Money-back Guarantee Refund”) if you cancel within the first thirty (30) days of the Initial Term (the “Money-back Guarantee Period”) and make a written request to Cymax Media for such refund. The Money-back Guarantee Refund shall only accrue and be due to you upon your compliance with, and subject in all respects to, the terms and conditions of this section. Money-back Guarantee Refunds only apply to basic hosting services.
- The Money-back Guarantee Refund is valid for credit card payments only. Due to the costs associated with processing payments made by other methods, we are not able to offer the Money-back Guarantee Refund for other payment methods.
- Nonrefundable Fees.
Fees paid by Subscriber in connection with the purchase of add-on services, including without limitation, SSL certificates are non-refundable, as are payments made by check for $10.00 or less due to processing fees, unless otherwise expressly provided.
Cancellations After 30 Days. Cymax Media may offer pro-rated refunds for cancellations that occur after thirty (30) calendar days based on their reasonable discretion.
- Cymax Media as Reseller or Licensor.
Cymax Media is acting only as a reseller or licensor of certain third party services, hardware, software and equipment used in connection with the Services (“Non-Cymax Media Products”). Cymax Media shall not be responsible for any changes in the Services that cause any Non-Cymax Media Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Cymax Media Products either sold, licensed or provided by Cymax Media to you or purchased directly by you and used in connection with the Services will not be deemed a breach of Cymax Media’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-Cymax Media Product are limited to those rights extended to you by the manufacturer of such Non-Cymax Media Product. You are entitled to use any Non-Cymax Media Product supplied by Cymax Media only in connection with your permitted use of the Services.
- Internet Protocol (IP) Address Ownership.
If Cymax Media assigns you an Internet Protocol (“IP”) address for your use, you shall have no right to use that IP address except as permitted by Cymax Media in its sole discretion in connection with the Services during the Term. Cymax Media shall retain ownership of all IP addresses assigned to you by Cymax Media, and Cymax Media reserves the right to change or remove any and all such IP addresses in its sole discretion.
- Resource Usage.
- Shared Hosting
- Acceptable Use Policy. Hosting space is intended for use in accordance with Cymax Media’s Acceptable Use Policy, and is limited to Web files, active e-mail and content of the hosted Subscriber Websites, not for storage (whether of media, e-mails, or other data). Hosting space further may not be used as offsite storage of electronic files, e-mail or FTP hosts. Cymax Media expressly reserves the right to review every user account for excessive usage of CPU, bandwidth, disk space and other resources that may be a result of your violation of this Agreement or the Acceptable Use Policy. Cymax Media may, in its sole discretion, terminate access to the Services, apply additional fees, or remove/delete Subscriber Content for those Subscriber accounts that are found to be in violation of Cymax Media policies. You hereby agree that Cymax Media shall have no liability due to any action that Cymax Media may take, including without limitation suspension or termination of Services in connection with your violation of this section.
- Unlimited Hosting Space; excessive MySQL files. Cymax Media does not set arbitrary limits on the amount of disk space a Subscriber can use for the Subscriber’s Website, nor does Cymax Media charge additional fees based on an increased amount of storage used, provided the Subscriber’s use of storage complies with this Agreement. Accounts with a large number of files (inode count in excess of 200,000) can have an adverse affect on server performance. Similarly, accounts with an excessive number of MySQL/PostgreSQL tables (i.e., in excess of 1000 database tables) or of database size (i.e., in excess of 3GB total MySQL/PostgreSQL usage or 2GB MySQL/PostgreSQL usage in a single database) negatively affect the performance of the server. Cymax Media may request that a Subscriber’s number of files/inodes, database tables, or total database usage be reduced to ensure the proper performance of the Services or may terminate the Subscriber’s account, with or without notice.
- Unlimited File Transfer. Cymax Media does not set arbitrary limits on the amount of visitor traffic Subscriber Websites can receive or on the amount of content a Subscriber can upload to Subscriber Websites in any given month, nor does Cymax Media charge additional fees based on the increased use of bandwidth, as long as the Subscriber’s use of the Services complies with this Agreement. In most cases, Subscriber Websites will be able to support as much traffic as the Subscriber can legitimately acquire. However, Cymax Media reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other Subscribers.
- Technical Support Services.
- Except as described otherwise stated below, Cymax Media will provide technical support via chat and phone for the Services (“Technical Support Services”). You will be required to provide as much information as possible to aid our investigation into any issues or problems. By utilizing Cymax Media’s Technical Support Services, you grant Cymax Media permission to access your account, if necessary, to resolve your issue. You agree that Cymax Media and its agents and employees are not liable for any damage resulting from the provision of customer support.
- Ineligibility for Technical Support Services. Cymax Media will not provide Technical Support Services if: (a) you are in breach of this Agreement; (b) the need for Technical Support Services is due to (i) any modification or attempted modification of the Services by you or any third party outside of Cymax Media’s control, or (ii) your failure or refusal to implement changes recommended by Cymax Media; or (c) you are abusive toward our staff in any manner.
- VPS and Dedicated Servers. Cymax Media will provide a default operating system installation on the dedicated server hardware that permits super-user server access to our support staff. Subscriber agrees and acknowledges that if Subscriber alters or removes this server access, Cymax Media’s ability to provide technical support to the Subscriber may be severely limited.
You acknowledge and agree that your use of the Services, including any information or content obtained through the Services, is at your own risk. You further acknowledge and agree that Cymax Media exercises no control over, and accepts no responsibility for, the content of the information passing through Cymax Media’s host computers, network hubs and points of presence or the Internet.
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” CYMAX MEDIA AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “CYMAX MEDIA PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. THE CYMAX MEDIA PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. THE CYMAX MEDIA PARTIES ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM SUBSCRIBERS OR STORED BY SUBSCRIBERS ON OR THROUGH THE SERVICES. NO ADVICE OR INFORMATION GIVEN BY CYMAX MEDIA OR CYMAX MEDIA’S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. CYMAX MEDIA DOES NOT GUARANTEE THAT SUBSCRIBERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. CYMAX MEDIA DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR CYMAX MEDIA IN PARTICULAR. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
- Limitation of Liability.
- CYMAX MEDIA SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT WILL THE CYMAX MEDIA PARTIES BE LIABLE TO YOU OR ANY THIRD PERSON 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 SUBSCRIBER CONTENT, SUBSCRIBER WEBSITE OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF CYMAX MEDIA IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CYMAX MEDIA’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 CYMAX MEDIA FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE (1) YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, CYMAX MEDIA’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless the Cymax Media 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 attorney’s fees) threatened, asserted, or filed by a third party against any of the Cymax Media 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, except to the extent any of the foregoing directly results from Cymax Media’s own gross negligence or willful misconduct. The terms of this section shall survive any termination of this Agreement.
- Governing Law and Arbitration.
- Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this Agreement must be brought in Douglas County, Colorado. You irrevocably consent to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
For all Subscribers who signed up for or purchased Services on or after
April 1, 2017, the following terms shall also apply:
- Cymax Media 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 between Cymax Media and you.
- A party who intends to seek arbitration must first send written notice to Cymax Media’s Legal Department of its intent to arbitrate (“Notice”). The Notice to Cymax Media should be sent by any of the following means: (i) electronic mail to info@Cymax Media.com; or (ii) sending the Notice by U.S. Postal Service certified mail to Cymax Media llc., Attn: Daniel Clawson, 1023 Buttermilk Road, Larkspur, Colorado 80118. 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 Cymax Media may commence an arbitration proceeding.
- 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.
- In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Cymax Media 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 Cymax Media 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, Cymax Media shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration.
- You agree that, by entering into this Agreement, you and Cymax Media are waiving the right to a trial by jury.
- If you initiate litigation or any other proceeding against Cymax Media in violation of this section, you agree to pay Cymax Media’s reasonable attorneys’ fees incurred in connection with its enforcement of this section.
- 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.
- ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR CYMAX MEDIA MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER SUBSCRIBERS, 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.
- Backups. For its own operational efficiencies and purposes, Cymax Media from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under this Agreement. IT IS SOLELY SUBSCRIBER’S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER’S FILES AND DATA ON CYMAX MEDIA SERVERS, AND under no circumstance will Cymax Media be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber files and/or data on any Cymax Media server. Cymax Media will not attempt to back up accounts that exceed 50,000 files or 30 Gigs of space for any reason and does not maintain any backups of dedicated accounts.
- Independent Contractor. Cymax Media and Subscriber are independent contractors and nothing contained in this Agreement places Cymax Media and Subscriber in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Headings. The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
- Severability. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions (unless otherwise specified) thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. You may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Cymax Media. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Cymax Media 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. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- 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.
- Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights in any person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, you acknowledge and agree that any supplier of a third-party product or service that is identified as a third-party beneficiary in the Service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products nor services against you as if it were a party to this Agreement.
- Hosting for WordPress.
- Assignment. Neither Party shall assign, transfer or convey, in any way, its rights in this Agreement to any third party without first obtaining the written consent of the other Party.
- Governing Law and Venue. This Agreement is governed by and construed under the laws of the State of Colorado. Any action brought by either Party against the other to enforce or interpret this Agreement will be submitted to a Court of competent jurisdiction in Douglas County, Colorado.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL CYMAX MEDIA, LLC.., ITS AFFILIATES, OR ITS SUPPLIERS AND LICENSORS, BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH WEB HOSTING SERVICES PROVIDED BY CYMAX MEDIA, LLC..