The section below titled “Arbitration Clause” requires all claims to be resolved by way of binding arbitration. The section below titled “Class Action Waiver” contains a binding class action waiver. Please read both sections carefully, as they affect your legal rights.
This Services Agreement (the “Agreement”) contains the complete terms and conditions which govern your subscription of Web hosting, e-Commerce, mobile applications, and other Internet-related services provided by ButterJAM LLC Hosting, (the “Services”). As used in this Agreement, “ButterJAM” means ButterJAM LLC, and “Client”, “you”, or “your” means you. By accessing these services, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the ButterJAM LLC site. As referred to in this Agreement, “Site” refers to a World Wide Web site and “ButterJAM Site” refers to the Site located at the URLs http://www.ButterJAM.com or http://www.ButterJAM.net, or any other successor Sites owned or maintained by ButterJAM.
1. Appropriate Use Of Services
ButterJAM provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.
Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client – or through Client by a third party – to any ButterJAM server in connection with Client’s use of the Services which: violate any state, federal or foreign laws or regulations; infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of ButterJAM or any third party; are defamatory, slanderous or trade libelous; are threatening or harassing; are discriminatory based on gender, race, age or promotes hate violate any ButterJAM policy posted on the ButterJAM Site. You agree that you will not send malicious e-mails which contain viruses or other computer programming defects which result in damage to ButterJAM or any third party.
Client may occupy only the amount of allocated disk space on the ButterJAM Server and utilize no more than the network bandwidth that is allotted by ButterJAM. Additional fees, specified on ButterJAM’s site pages, will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
Client shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices at ButterJAM, or otherwise, that mentions or reference any domain hosted on ButterJAM servers or parked on ButterJAM DNS servers. NOTE: THIS POLICY APPLIES TO ALL ACCOUNTS, DEDICATED SERVER CUSTOMERS, AND ALL DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVERS. (Violators will be fined! We reserve the right to fine violators $500 per incident of spamming abuse.)
Licensed Software Only:
Client agrees to use only properly licensed third party software in connection with Client’s use of the Services.
Client will have the ability to reinstate files which are automatically archived by ButterJAM; however, ButterJAM does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, Client is responsible for making back-up files in connection with its use of the Services. Backup capability is available through the Client’s Control Panel.
Access to and use of password protected and/or secure areas of the Platform is restricted to authorized users only. Unauthorized persons attempting to access these areas of the website may be subject to legal action.
ButterJAM reserves the right to refuse service to anyone. ButterJAM, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behavior by a third party using the Services, please contact firstname.lastname@example.org.
2. Payment Obligations And Service Fees
Payment is due on the first of each month, ButterJAM shall either (i) debit Client’s credit card (where such information is provided by Client) or (ii) deliver by e-mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month. Where an invoice is delivered to Client, Client shall remit payment to ButterJAM by no later than 10 days after the specified payment due date. ButterJAM shall be entitled to immediately terminate this Agreement for Client’s failure to make timely payments to ButterJAM. Certain services carry a set-up fee charged by ButterJAM to Client that must be paid by Client in order to have use of the Services. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to ButterJAM and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid ButterJAM for such Services, refunds will be issued for any unused full month portions less one month of the Services upon Clients request. Therefore, if Client’s account is cancelled at any point during the one (1) year term, Client will be entitled to a refund for all but one of the full months remaining after notice given by the 25th of the preceding month.
3. Client Liability and Indemnification
The parties agree that in no event shall ButterJAM be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless ButterJAM from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.
4. Term, Termination & Reinstatement
Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month basis unless otherwise specified by separate agreement (the “Term”) unless terminated earlier pursuant to the provisions of this Section 3. Either party will have the right to terminate this Agreement upon notice to the other party. If Client is terminating this Agreement, Client must follow instructions for cancellation provided on the Server Cancellation Information page. All cancellation requests must be received by the end of the respective month of cancellation. Any other attempt by Client to cancel this Agreement by written or e-mail notice shall be void. Sections 3 – 8 shall survive termination or expiration of this Agreement. If Client terminates its account, Client shall be allowed to re-instate Client’s use of the Services within Seven (7) business days of cancellation. Client shall pay a fee of Twenty Dollars ($20) prior to any re-instatement of Client’s account. Once payment has been received, Client’s account will be activated within Forty-Eight (48) business hours. ButterJAM will maintain an archival copy of Client’s Web site for Seven (7) days after ButterJAM receives notice of cancellation. Thereafter, Client will need to place a new order if it wishes to subscribe to the Services.
Client will pay and indemnify and hold ButterJAM harmless from any and all taxes associated with or arising from Client’s use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
6. Disclaimer of Warranty
THE SERVICES, THE BUTTERJAM SITE, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE BUTTERJAM SITE, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY KIND. BUTTERJAM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FOREGOING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUTTERJAM SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
7. Limitation of Liability
IN NO EVENT SHALL BUTTERJAM BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE BUTTERJAM SITE OR ANY BUTTERJAM PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL BUTTERJAM CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN ONE HUNDRED DOLLARS ($100 US).
8. Dispute Resolution; Agreement to Arbitrate
You and ButterJAM (for purposes of this section, “the parties”) agree that any claim or controversy that may arise between you and ButterJAM relating in any way to your use of the publicly available portions of the Platform will be determined by binding arbitration conducted under the auspices of JAMS pursuant to its Arbitration Rules and Procedures. This arbitration agreement includes any controversy involving the performance, construction, or breach of these Terms and Conditions.
You and ButterJAM agree that the arbitration shall apply the substantive law of New York to all state law claims, that limited discovery shall be conducted in accordance with JAMS’s Arbitration Rules and Procedures, and that the arbitrator may not award punitive or exemplary damages, unless (but only to the extent that) such damages are required by statute to be an available remedy for any of the specific claims asserted. In accordance with JAMS’s Arbitration Rules and Procedures, the arbitrator’s award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law, or other written explanations of the reasons for the award. You understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. You acknowledge that you are waiving your right to a jury trial. Judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction and the parties hereto and their respective representatives hereby submit to the jurisdiction of any such court for the purpose of such arbitration and the entering of such judgment.
Federal and state statutes of limitation, repose, and/or other rules, laws, or regulations impose time limits for bringing claims in federal and state court actions and proceedings. The parties agree that all federal or state statutes of limitation, repose, and/or other rules, laws, or regulations imposing time limits that would apply in federal or state court, apply to any Controversy, and such time limits are hereby incorporated by reference. Therefore, to the extent that a Controversy would be barred by a statute of limitation, repose or other time limit, if brought in a federal or state court action or proceeding, the parties agree that such Controversy shall be barred in an arbitration proceeding.
Any award of the arbitrator or a majority of the arbitrators will be final and binding, and judgment on such award may be entered in any court having jurisdiction. This arbitration provision will be enforced and interpreted exclusively in accordance with applicable federal laws of the United States, including the Federal Arbitration Act. Any costs, attorneys’ fees or taxes involved in confirming or enforcing the award will be fully assessed against and paid by the party resisting confirmation or enforcement of said award.
You agree to the following additional provisions regardless of your place of residence at the time a Controversy arises:
- You agree that any arbitration hearing will be held in New York, New York;
- You agree to the personal jurisdiction of the courts located in the State of New York, United States, to interpret and enforce the arbitration provisions described in these Terms and Conditions; and
- All arbitrations will be held in the English language, unless otherwise agreed to by the parties.
You agree that this agreement to arbitrate shall be binding on you, your heirs, administrators, representatives, executors, successors and assigns.
9. Class Action Waiver
You agree that any arbitration or proceeding shall be limited to the dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. You agree that you may bring claims against us only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
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 email address specified below on the delivery date.
If to Client: Name, email address, username and address provided for account setup. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by ButterJAM. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees. This Agreement is made under and shall be governed by the laws of the United States of America, except with regard to it’s conflict of law rules. This Agreement and ButterJAM’s policies are subject to change by ButterJAM without notice. Continued usage of the Services after a change to this Agreement by ButterJAM or after a new policy is implemented and posted on the ButterJAM Site constitutes your acceptance of such change or policy. We encourage you to regularly check the ButterJAM Site for any changes or additions. We reserve the right to make changes to the aforementioned terms at any time.