Terms of Services

The following terms and conditions are the agreement between eSmiths, LLC (us, we, our, Company, or eSmiths) and you (your, customer or client) and governs your use of the eSmiths hosting and services we provide. Please review this agreement carefully.

eSmiths reserves the right to modify any of the terms and conditions within this agreement at any time. Any changes will be effective upon posting of the revisions on esmiths.net. If you do not agree to the terms in this Agreement, then please immediately contact eSmiths to cancel any active services. Your use of our site or services binds you to this Agreement.

Services

eSmiths services include, but are not limited to, website hosting (hosting), web marketing, programming and design. By signing up for any eSmiths services, you represent you are at least eighteen (18) years of age and legally able to enter into this agreement on behalf of yourself or a company. You agree you will use the services in accordance with the terms stated in this agreement.

Service Level Agreement (SLA)

eSmiths strives to have hosting services available 99.9% of the time in any given month. In the event of service interruption on eSmiths equipment and unrelated to scheduled maintenance, credit of one (1) day’s hosting fees for every sixty (60) minutes of service unavailability, up to one (1) month’s hosting fee. To receive a credit, you must contact eSmiths indicating the service unavailability within 24 hours of interruption and must be in good financial standing with eSmiths at the time of the incident.

eSmiths provides guaranteed support response within 1 business day for non-emergency issues, and within 1 hour, 24/7 for emergency (e.g. site-down) issues.

Acceptable Use Terms

All services provided by eSmiths may be used only in accordance of the law.

You may not use eSmiths services to violate any governing law or regulation, including laws prohibiting: copyright, patent, trademark, trade secret, or other intellectual property infringement, misuse, or misappropriation; distribution of child pornography, child erotica, non-consensual sex acts (including in the support of or furtherance of sex trafficking), or bestiality; gambling; defamation, harassment, libel, or slander; fraud or false advertising; and hacking, phishing, social engineering, or any transmission of malicious code or unauthorized use of the computing resources of an end user.

Further, you may not use eSmiths services in connection with any content that eSmiths reasonably believes: promotes, incites, or threatens violence; is in support of or furtherance of sex trafficking; contains harassing content or hate speech; violates any person’s privacy; constitutes terrorism or trafficking in weapons or other illegal items; or is likely to result in retaliation against eSmiths system, network, or employees, including behavior that results in any denial of service attack.

Services may not be used in violation of export laws, controls, regulations, or sanction policies of the United States or your applicable jurisdiction.

Services may not be used by any individual or legal entity which is involved with or suspected of involvement in activities or causes relating to: illegal gambling; terrorism; narcotics trafficking; arms trafficking or the proliferation, development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles; in each case including any affiliation with others whatsoever who sponsor or support the above such activities or causes.

It is eSmiths policy to immediately suspend or terminate the services of customers who violate these terms.

Billing and Payments

Unless stated otherwise in a signed agreement, project services begin work after 50% deposit payment is received, then billed for the remaining 50% plus costs upon delivery.

Support services are billed at the end of each month.

Hosting is billed at the beginning of each month for that month. Hosting services have specified storage and usage limits and accounts that exceed these limits may be billed overage charges.

All billing and prices shown on esmiths.net are in US currency and payments to us are to be made in US currency. We accept the following forms of payment:

Credit Card (VISA, MasterCard, American Express, Discover)

PayPal

Check or Money Order

You agree to provide eSmiths with accurate account and billing information. This includes but is not limited to name, address, phone number, email address and payment information. It is your responsibility to ensure eSmiths has current billing information on file. Invoices, statements and past due reminders are sent via email by default. Account updates should be sent to [email protected].

Invoices not paid by the invoice due date, may result in suspension of services including hosting or work in progress at any time after the due date. Services will be suspended until the account is brought current and may be charged a reactivation fee. Hosting services not reactivated within 30 days of suspension will be cancelled and removed from our servers.

Hosting and other services fees are non-refundable but can be applied to other services with eSmiths if requested within one (1) year of the original approval.

Accounts with a payment that is returned for insufficient funds (NSF check) or has a credit card chargeback may be charged a $30 processing fee.

Cancellation

All cancellations are to be made in writing to [email protected]. Hosting and support services are provided on a month to month term and may be cancelled by the client at any time. Prepaid hosting and service fees are non-refundable.

Upon cancellation of service, the data in your account (hosting files, etc.) will be removed after 48 hours and cannot be recovered. It is your responsibility to ensure you have copies of all needed data.

eSmiths will not be liable to you for compensation, reimbursement or damages on the account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever on suspended or voluntary or involuntarily cancelled accounts.

Cancellation of your account does not relieve you from paying any outstanding balance owed on your account.

Notices

As a customer, you understand and agree eSmiths may send you notices regarding your services or account by email. These notices include, but are not limited to, scheduled maintenance, overages and billing updates.

Disclaimer

Our website and services are provided “as-is” and “as available” and we disclaim all warranties, express or implied, including but not limited to the merchantability or fitness for a particular purpose. We do not represent or warrant that the website or services will be error-fee, free of viruses or other harmful components or that defects will be corrected. The information and services may contain bugs, errors, problems or other limitations and neither eSmiths nor its suppliers or affiliated parties have any liability for your use of the services, except as stated elsewhere in this document.

Limitation of Liability

With respect to this agreement in whole, in no event, will eSmiths or its suppliers be liable for any loss or damages of any kind, the cost to obtain substitute services, interruptions of service, loss or corruption of data or for any amounts that exceed your payments to eSmiths during the twelve (12) months prior to the cause of action. eSmiths has no liability for any failure or delay due to circumstances beyond our reasonable control.

Indemnification

You agree to defend, indemnify and hold harmless eSmiths, its suppliers, and their respective employees, directors and representatives from and against any and all claims and expenses, including attorney’s fees, arising out of or relating to your use of our services, including but not limited to your violation of this agreement.

Miscellaneous

This Agreement shall be treated as though it were executed and performed in Billings, Montana, and shall be governed by and construed in accordance with the laws of the State of Montana (without regard to conflict of law principles). Any cause of action by you with respect to the services must be instituted within one (1) year after the cause of action arose or be forever waived and barred. Any dispute arising under this Agreement shall be settled in accordance with the commercial arbitration rules of JAMS. Any dispute shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with another party. The arbitration shall be conducted in Billings, Montana and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or us may seek any interim or preliminary relief from a court of competent jurisdiction in Billings, Montana necessary to protect the right or property of you and us pending the completion of arbitration. Each party shall bear one-half the arbitration fee and costs incurred through JAMS. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.

This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger.

Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

To the extent that anything in or associated with the site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.

Updated November 17, 2021