Service Agreement

This is a legal document. All Smilii customers are bound by it! (Please read it!)

What is this?

The agreement below is a legal agreement between Smilii and all of our customers. If you use any service provided by or affiliated with Smilii, you are legally bound by this agreement. Read it carefully before signing up and ensure that you understand and agree to all parts. Use of our services implies agreement with this contract!

This agreement is between you (hereinafter “you”, “your” or “beneficiary”) as beneficiary and Smilii, LLC. (hereinafter referred to as “us”, “our”, “Smilii” or “provider”) as a provider of hosting services (shared hosting, virtual servers or dedicated servers). Using our services is the subject of this contract.

This Agreement, whose provisions and clauses agreed in the contractual freedom under the law has been established by our mutual agreement and in compliance with the law.

This contact serves as the legal basis for all services provided by Smilii.

Questions?

Any questions regarding this agreement should be sent to Smilii’s sales department prior to signing up for service.

SERVICE AGREEMENT

THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and Smilii.

WHEREAS, Smilii owns, distributes and provides various products and services for conducting business on the Internet including shared, reseller and dedicated web hosting, Plesk licensing, and the Smilii family of services (hereinafter collectively referred to as the “Services”).

WHEREAS, Client desires to utilize some or all of the Services to develop, enhance or maintain Client’s business and/or presence on the Internet.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:

1. Smilii SERVICES

Smilii agrees to provide to Client the Services agreed upon between Smilii and Client as selected by Client in Smilii’s customer database that is specified at www.getsmilii.com.

2. PAYMENT AND INVOICING

2.1 In consideration of the performance of the Services, Client shall pay Smilii in advance the amount set forth in Smilii’s customer database as such records are amended from time to time for the Services during the term of this Agreement.

2.2 Client is responsible for all activities and charges resulting from Client’s use of the Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Smilii by sending an e-mail with account information to [email protected].

2.3 Current rates for using the Services may be obtained on our web site at www.getsmilii.com. Smilii reserves the right to change fees, surcharges, or to institute new fees at any time. In addition, Smilii may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Smilii does not receive the full amount of Client’s Service account balance, Smilii may suspend and/or terminate Client’s account immediately without further notice to Client.

2.4 All hosting services renew automatically. The client may opt out of automatic renewals by contacting our Billing department at [email protected].

3. RESPONSIBILITIES AND RIGHTS OF SMILII

3.1 Means of Performance. Smilii shall provide Client with the Smilii hosting services, as described at www.getsmilii.com hereto. Smilii has the right to control and direct the means, manner, and method by which the host services are performed. Currently, the server locations for Web Hosting, WordPress Hosting, and Reseller Hosting are New York, and Amsterdam. The server locations for VPS Hosting are: [NOT YET AVAILABLE]. Smilii retains the right to alter the default location for accounts at its discretion as needed.

3.2 Support. Smilii shall provide a reasonable level of technical support to Client via email or Live Chat for the term of this Agreement.

3.3 Uptime Guarantee. “Uptime” refers to the amount of time the Services are available, as measured solely and only by Smilii’s internal monitoring systems. We will not accept third-party uptime monitoring systems as evidence that you are entitled to a compensation. “Downtime” refers to the amount of time the Services are unavailable, as measured solely and only by Smilii’s internal monitoring systems. Smilii guarantees networking and services connectivity uptime of 99.99% on an annual base. If we fall below the guaranteed uptime, we will compensate you as follows:

• 99.99% – 99.00% uptime: 1 month free hosting
• An additional month of free hosting for every 1% of uptime lost below 99.00%

In the event such level of service is not provided, Smilii will offer a compensation as determined in the chart above, and only for your Smilii hosting Services, but not for any of the following products and additional services: domain name registration, software licenses (WHMCS, LiteSpeed, Plesk, CloudLinux, Imunify36), set up fees, Automated remote backups, SSL Certificates, labor charges, and other services which are unrelated to hosting service Uptime.

Compensation is limited to the length of your current billing cycle, but cannot exceed twelve months for the affected hosting services.

To receive compensation, You must make a request by creating a ticket with our Billing department, within your lab. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers which experienced the Downtime. The request must be received by Smilii within ten (10) business days after the incident of Downtime. If the unavailability is confirmed by Smilii, compensation will be applied to Your Smilii account within thirty (30) days of receipt of the request.

The provisions of the Agreement pertaining to Force Majeure are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by Smilii to provide credit to You:

1. emergency maintenance
2. scheduled maintenance
3. system or hardware upgrades
4. domain name system (DNS) problems outside of Smilii’s control
5. issues with FTP, POP, IMAP, or SMTP customer access
6. Acts or omissions by You or any of Your employees or agents, resulting in downtime
7. Any negligence, willful misconduct, or use of the services in breach of Smilii’s Acceptable Use Policy
8. Problems with users’ web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the Smilii servers
9. Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events
10. Downtime caused when you reach out the maximum resources allocation for your plan.

3.4 Other Work. Smilii has the right to perform and license products to others during the term of this Agreement. Smilii may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. Smilii reserves the right to block any site hosted by Smilii that contains any content that Smilii deems in its sole discretion to be unacceptable or undesirable.

4. RESPONSIBILITIES AND RIGHTS OF CLIENT

4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client’s obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Smilii Clients’ use of Services. Client assumes all risks related to the processing of transactions related to electronic commerce. Client agrees to provide Smilii with the accurate, complete and updated information required by the registration of the Smilii host service (Client Registration Data), including Client’s legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify Smilii within thirty (30) days of any changes in Client’s Registration Data.

4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Smilii will have the right, in its sole discretion, to suspend or terminate immediately any Services.

4.3 Fees and Expenses. Client shall be responsible for payment of all costs, fees, and expenses assessed by third parties in the course of being provided Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.

4.4 Third-Party Software. Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the third-party software, the Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes Smilii to delegate the authorizations Client provides to Smilii to its third party service provider(s) as Smilii deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. The client also agrees that all reference to “Smilii” within this Agreement and any incorporated terms are also deemed to include, where applicable, Smilii’s agents, such as the third party service providers.

4.5 Advertising, Solicitation, and Client Name Harvesting. The client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the Smilii clients or other Internet users unless the Client receives the express permission of such individuals. The client may not use the means of unsolicited advertising to advertise a site hosted on the Smilii network. The client may not use the Services to collect or “harvest” user-names of Smilii clients or other Internet users without the expressed prior permission of the member. Smilii reserves the right to block or filter mass email solicitations sent from sites hosted on the Smilii network.

4.6 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, Smilii then-standard Terms of Service (“TOS”) and any generally applicable guidelines and service standards published by Smilii. Client warrants that its site hosted on the Smilii network (i) will conform to the Smilii TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (iii) will not contain any content which violates any applicable law, rule or regulation. Smilii shall have no obligations with respect to the content available on or through any site hosted on the Smilii network, including, but not limited to, any duty to review or monitor any such content. Smilii reserves the right to block any site that violates any of the above-stated terms, or which in Smilii’s sole discretion, Smilii deems objectionable or offensive, or otherwise violates a law or Smilii policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.

4.7 Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Smilii from time to time. The TOS are incorporated herein and made a part hereof by this reference. Smilii may change the TOS, with notice, which notice may be provided by posting such new TOS at the Smilii Site. Client may request a current copy of the TOS by sending or faxing a request to Smilii. Client agrees that it has received, read and understands the current version of the TOS.

4.8 Proprietary Rights. Unless otherwise specified, all work performed hereunder by Smilii, is the property of Smilii, and all title and interest therein shall vest in Smilii. To the extent that title to any such works may not, by operation of law, vest in Smilii all rights, title, and interest therein are hereby irrevocably assigned to Smilii. All such materials shall belong exclusively to Smilii, and Smilii shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Smilii and any person designated by Smilii such reasonable assistance, at Smilii’s expense, as is required to perfect the rights defined in this paragraph.

5. LIMITATION OF LIABILITY, NO OTHER WARRANTY, AND DISCLAIMER

5.1 Limitation. In the event that any limited guarantees are provided by Smilii, such limited guarantees are null and void if Client fails to follow Smilii’s TOS and other policies or otherwise breaches this Agreement in any respect.

5.2 Backups. Smilii performs nightly backups of Web Hosting, Reseller Hosting, and WordPress Hosting servers; however, these backups are for Smilii’s administrative purposes only, and are in NO WAY GUARANTEED! Customers are responsible for maintaining their own backups on their own personal computers. Smilii does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly (even if the malfunction was due to negligence on Smilii’s part). We will do our best to ensure complete and accurate backups, but assume no responsibility for this duty. Always back your site up to your personal computer! We make no guarantees about the availability of backups.

5.3 No Other Warranty. Smilii does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained therefrom is at Client’s own risk. The Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. Except as provided in the order form(s), Smilii does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Smilii does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure.

5.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Smilii does not and cannot control the flow of information to or from Smilii’s network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client’s connections to the Internet (or portions thereof). Smilii cannot guarantee that such events will not occur. Accordingly, Smilii disclaims any and all liability resulting from or related to such events.

6. INDEMNIFICATION

Client agrees to indemnify, defend and hold Smilii and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of Client’s violation of this Agreement, State or Federal Securities laws or regulations, or any other person’s rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.

Under no circumstances, including but not limited to a negligent act, will Smilii or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.

In no event will Smilii or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by Smilii. Smilii and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if Smilii or its third party service providers has been advised of the possibility of such damages, resulting from (i) the use of the inability to use the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user data, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchased or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold Smilii responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.

Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of Smilii and its third party service providers, employees, distributors, and agents is limited to the greatest extent allowable under applicable law in those states.

In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client’s remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of Smilii and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.

7. TERMINATION

7.1 Without Cause. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days’ prior email notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such five (5) day period.

7.2 For Cause. In addition to any other rights it may have under this Agreement or applicable law, Smilii may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client’s breach or failure to comply with the TOS or other policies of Smilii. The client may terminate this Agreement if Smilii breaches any material term or written notice of same. If this Agreement is terminated by Smilii under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Smilii reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Smilii believes in its sole discretion to be illegal or potentially harmful to others or may expose Smilii to harm or liability.

7.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.

7.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.

7.5 IP Address. Upon expiration, cancellation or termination of this Agreement, Client shall relinquish any Internet protocol (“IP”) numbers, address or address blocks assigned to Client by Smilii or its network services supplier (but not the URL or top level domain connected therewith). Smilii reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.

8. GENERAL

At Smilii, we always treat our customers with the utmost respect. In return, we expect the same from you. If our staff feels that you are consistently addressing them in a demeaning or rude manner, your account may be suspended and you may be asked to take your business elsewhere. In the event that we terminate service for support abuse, customers will be given ten (10) days notice to find a new host.

Support Abuse

8.1 Assignment. The client may not assign this Agreement or any of Client’s rights or obligations hereunder without the prior written consent of Smilii, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties’ respective successors and permitted assigns.

8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed email.

If to Smilii:

[email protected]

If to Client:

To Client address provided at account set-up.

8.3 Governing Law. This Agreement and all future agreements Client may enter into with Smilii, unless otherwise indicated on such other agreement, will be governed by the laws of the State of Delaware, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Smilii in the United States or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the County of Delaware, United States. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.

8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

8.6 Severability. In the event any one or more of the provisions of the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

8.7 Force Majeure. Smilii and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.

8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

8.9 Terms of Services. Client agrees to be bound by Smilii’s TOS for all Services and products used by Client. The current TOS can be found on Smilii’s website at https://smilii.net. Should Client disagree with any updates to Smilii’s TOS, it is Client’s responsibility to notify Smilii of Client’s desire to terminate their Services immediately.

8.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND Smilii’s TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREEMENT AND THE TOS. CLIENT’S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.

8.11 Entire Agreement. This Agreement and the exhibits referenced herein set forth the entire agreement and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or another document, unless the party to be bound thereby specifically agrees to such provision in writing.

8.12 No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.

Exhibit A: Smilii Terms of Service (TOS)

Smilii’s current Terms of Service are available at the following Link:

Terms Of Service

Exhibit B: Smilii Resource Usage Policy (RUP)

Smilii’s current Resource Usage Policy is available at the following Link:

Resource Usage Policy

Questions?

Any questions regarding this agreement should be sent to Smilii’s sales department before signing up for service.