Managed Dedicated Server Plans

Make Directory believes in our client’s ideas, and ability to develop their online businesses. That is why each of our hosting products, from single-page websites to personal servers, come preconfigured and fully managed for your needs; allowing you to focus your energy on all of the paramount aspects of business. We offer fast, reliable support for all levels - from a basic blog site to a high-powered server. Hosting has never been easier.

Managed Dedicated Server: Starter Plan

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Managed Dedicated Server: Starter Plan

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PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

OVERVIEW

This Hosting Agreement (this “Agreement”) is entered into by and between Make Directory Developers, LLC, a Massachusetts limited liability company (“Make Directory”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Make Directory’s Hosting services (the “Services”), and represents the entire agreement between you and Make Directory Developers concerning the subject matter hereof.Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to Make Directory. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site.

Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

ACCOUNT ELIGIBILITY

By registering for or using the Services, you represent and warrant that:You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

DESCRIPTION OF SERVICES

We offer varying plans of Hosting Services:

Cloud Server. If you purchase a Cloud Server, you will share a server cluster with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Web Hosting.  If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting.  If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Virtual Private Server (“VPS”).  If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”).

Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration.  Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.

You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration.  If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location.  We will perform website backups or archives in connection with a Hosting Migration upon request, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost.  You agree not to make any changes or revisions to your website during the migration process.

By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us.  You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.  You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Standard Hosting Migrations are not available for websites with over 100GB of data or more than 1,000,000 files, additional plans may be available upon request.

We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. We will disable and remove the plugin on your old site after the Hosting Migration has been completed upon request.

Enterprise Services Levels.  If we determine that any support request falls outside the scope of your plan, you can request additional support services (“Enterprise Services”) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Enterprise Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Enterprise Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims.

YOU MUST, WITHIN FOURTEEN DAYS OF ANY ENTERPRISE SERVICES, NOTIFY US IF THERE ARE ANY ISSUES WITH THE ENTERPRISE SERVICES. WE ARE NOT RESPONSIBLE FOR AND WILL NOT PROVIDE ASSISTANCE WITH ANY ISSUE(S) THAT ARISE BEYOND FOURTEEN DAYS OF ANY ENTERPRISE SERVICES.

LIMITATIONS; ACCOUNT TERMINATION

Migration of Servers.  You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.

Termination of Services.  You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and you will only be able to obtain a copy of such content for an additional fee.

Notice Regarding Licensed Images on Migration or Export (where available).  Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Make Directory hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions.  To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporporated therein, and you acknowledge and agree that Make Directory does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).

YOUR OBLIGATIONS

Auto-renewal. Unless otherwise provided, you agree that until and unless you notify Make Directory of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Justification.  You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats.  You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.  You further acknowledge and agree that Make Directory reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Make Directory’s discretion for security purposes.

In addition to the General Rules of Conduct listed in our “Blackboard” Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security.  You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are archive weekly; however we shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Make Directory complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. Make Directory does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.

The Services are not intended to provide a HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one, for this use you must purchase a dedicated hosting server. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.

Website/Server Content.  You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.

PROVISIONS SPECIFIC TO WEB AND WORDPRESS HOSTING

Storage and Plan Limits.  All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 500,000 inodes per account for Linux® hosting accounts. The plans are also limited to no more than 2,000 tables per database and no more than two gigabytes of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to upgrade to a dedicated server or may be temporarily or permanently suspended, in our sole discretion.

Basic Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 256MB of RAM; c) 1000 website connections; d) 100 active processes; e) 1 MB/s disk IO; f) 10 GB Storage; g) 75 GB/Month Bandwidth.

Standard Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 512MB of RAM; c) 2000 website connections; d) 200 active processes; e) 1 MB/s disk IO; f) 15 GB Storage; g) 150 GB/Month Bandwidth.

Business Linux hosting plan is subject to the following limitations: no more than a) 30% of one CPU core; b) 512MB of RAM; c) 10,000 website connections; d) 250 active processes; e) 1 MB/s disk IO; f) 25 GB Storage; g) 400 GB/Month Bandwidth.

In the event that the above limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

WordPress Hosting may only be used to host a WordPress website.  Only a single WordPress installation is allowed per website.  Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion.  Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.

You acknowledge and agree that inbound UDP is not support in shared hosting environments.

Website/Server Content.  Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Disk Space/Bandwidth/Website Plans.  Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer set bandwidth limits. This means that we set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

SERVICE UPTIME GUARANTEE

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 100% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

SSL CERTIFICATES

If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key. For security reasons, at no time will we release your private key, even per your request.

You acknowledge that Make Directory is an authorized reseller of SSL certificates, and You agree that Make Directory shall have no liability to You or to any other third party whatsoever as a result of, arising out of, or in relation to Your purchase of SSL certificate services from Make Directory.

THIRD PARTY SOFTWARE

Definition.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.  The Services shall be operated in the Linux® environments.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.  Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

DEFINITIONS; CONFLICTS

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.

ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.

FORCE MAJEURE.

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.

The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

ARBITRATION.

Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in Boson, Massachusetts in accordance with the rules then existing of the American Arbitration Association, provided however, that any injunctive relief including temporary restraining order or similar remedies may be pursued in the appropriate court.  The parties shall select a single mutually acceptable arbitrator knowledgeable about issues relating to Internet Services Development business and agreements.  All limitations of liability contained in the Agreement shall apply to any arbitration brought pursuant to this section.  The decision of an arbitrator or tribunal arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction in the United States.  The cost of arbitration shall be equally divided between the Developer and Client. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.

CONFIDENTIALITY.

Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Neither party shall, at any time, either directly or indirectly, use for its own benefit, nor shall it divulge, disclose, or communicate any information received from the other party that has been identified as Confidential. Upon request by an owner, all documents relating to the confidential information will be returned to such owner. Both parties agree to execute standard nondisclosure agreements in connection with this Agreement.

NOTICES.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered and signed for.

LIMITATION OF LIABILITY.

Notwithstanding the above remedies, the parties have discussed the risks and rewards associated with this Agreement and agree to allocate certain of the risks so that one contracting party’s total aggregate liability to the other contracting party will not exceed $I0,000.00 for any and all injuries, damages, claims, losses, expenses or claimed expenses (including attorneys’ and expert witnesses’ fees) arising out of this Agreement from any cause or causes, regard less of any warranties or indemnifications to the contrary in this Agreement such causes include, but are not limited to, either contracting party’s negligence, errors, omission , strict liability, breach of contract, or breach of warranty.

LIMITATION.

No action regardless of form, arising out of this Agreement shall be brought by Client more than two (2) years after such cause of action shall have occurred.

ENTIRE AGREEMENT.

This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written, unless specifically stated when entering future Contractual Agreements. This Agreement supersedes any prior written or oral agreements between the parties.

NO STRICT CONSTRUCTION.

In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

AMENDMENT.

This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

ASSIGNMENT OF RIGHTS.

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm corporation, or other entity without the prior, express, and written consent of the other party.

WAIVER OF CONTRACTUAL RIGHT.

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

INDEPENDENT CONTRACTOR.

Make Directory and User are independent contractors and nothing contained in this Agreement places Make Directory and User in the relationship of principal and agent, partners or joint ventures. 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.

APPLICABLE LAW.

This Agreement, entered agreement by both parties, shall be governed by the laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of laws thereof. Any dispute arising from these Terms shall be resolved exclusively in the state and federal courts of the Commonwealth of Massachusetts. The Client agrees and acknowledges that this Agreement was formed in Quincy, Massachusetts. 

VENUE/FORUM SELECTION CLAUSE.

YOU MUST READ, UNDERSTAND, AND AGREE WITH THIS CLAUSE BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT

You are working exclusively with a Boston, Massachusetts based company, Make Directory Developers, LLC. You and Make Directory Developers, LLC or any of its affiliates, or companies agree to submit to the jurisdiction of the courts located within the county of Suffolk, Commonwealth of Massachusetts.

YOU AGREE THAT MAKE DIRECTORY DEVELOPERS, LLC, ITS AFFILIATES AND COMPANIES HAVE REASONABLY COMMUNICATED THIS FORUM SELECTION CLAUSE TO YOU, YOU UNDERSTAND ITS TERMS, AND YOU HAVE ACCEPTED ITS TERMS.



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Stripe


Managed Dedicated Server: Basic Plan

Begin your dedicated server with Make Directory!

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Managed Dedicated Server: Starter Plan

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Summary

Description Information Quantity Price
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PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

OVERVIEW

This Hosting Agreement (this “Agreement”) is entered into by and between Make Directory Developers, LLC, a Massachusetts limited liability company (“Make Directory”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Make Directory’s Hosting services (the “Services”), and represents the entire agreement between you and Make Directory Developers concerning the subject matter hereof.Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to Make Directory. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site.

Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

ACCOUNT ELIGIBILITY

By registering for or using the Services, you represent and warrant that:You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

DESCRIPTION OF SERVICES

We offer varying plans of Hosting Services:

Cloud Server. If you purchase a Cloud Server, you will share a server cluster with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Web Hosting.  If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting.  If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Virtual Private Server (“VPS”).  If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”).

Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration.  Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.

You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration.  If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location.  We will perform website backups or archives in connection with a Hosting Migration upon request, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost.  You agree not to make any changes or revisions to your website during the migration process.

By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us.  You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.  You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Standard Hosting Migrations are not available for websites with over 100GB of data or more than 1,000,000 files, additional plans may be available upon request.

We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. We will disable and remove the plugin on your old site after the Hosting Migration has been completed upon request.

Enterprise Services Levels.  If we determine that any support request falls outside the scope of your plan, you can request additional support services (“Enterprise Services”) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Enterprise Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Enterprise Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims.

YOU MUST, WITHIN FOURTEEN DAYS OF ANY ENTERPRISE SERVICES, NOTIFY US IF THERE ARE ANY ISSUES WITH THE ENTERPRISE SERVICES. WE ARE NOT RESPONSIBLE FOR AND WILL NOT PROVIDE ASSISTANCE WITH ANY ISSUE(S) THAT ARISE BEYOND FOURTEEN DAYS OF ANY ENTERPRISE SERVICES.

LIMITATIONS; ACCOUNT TERMINATION

Migration of Servers.  You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.

Termination of Services.  You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and you will only be able to obtain a copy of such content for an additional fee.

Notice Regarding Licensed Images on Migration or Export (where available).  Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Make Directory hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions.  To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporporated therein, and you acknowledge and agree that Make Directory does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).

YOUR OBLIGATIONS

Auto-renewal. Unless otherwise provided, you agree that until and unless you notify Make Directory of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Justification.  You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats.  You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.  You further acknowledge and agree that Make Directory reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Make Directory’s discretion for security purposes.

In addition to the General Rules of Conduct listed in our “Blackboard” Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security.  You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are archive weekly; however we shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Make Directory complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. Make Directory does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.

The Services are not intended to provide a HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one, for this use you must purchase a dedicated hosting server. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.

Website/Server Content.  You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.

PROVISIONS SPECIFIC TO WEB AND WORDPRESS HOSTING

Storage and Plan Limits.  All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 500,000 inodes per account for Linux® hosting accounts. The plans are also limited to no more than 2,000 tables per database and no more than two gigabytes of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to upgrade to a dedicated server or may be temporarily or permanently suspended, in our sole discretion.

Basic Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 256MB of RAM; c) 1000 website connections; d) 100 active processes; e) 1 MB/s disk IO; f) 10 GB Storage; g) 75 GB/Month Bandwidth.

Standard Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 512MB of RAM; c) 2000 website connections; d) 200 active processes; e) 1 MB/s disk IO; f) 15 GB Storage; g) 150 GB/Month Bandwidth.

Business Linux hosting plan is subject to the following limitations: no more than a) 30% of one CPU core; b) 512MB of RAM; c) 10,000 website connections; d) 250 active processes; e) 1 MB/s disk IO; f) 25 GB Storage; g) 400 GB/Month Bandwidth.

In the event that the above limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

WordPress Hosting may only be used to host a WordPress website.  Only a single WordPress installation is allowed per website.  Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion.  Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.

You acknowledge and agree that inbound UDP is not support in shared hosting environments.

Website/Server Content.  Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Disk Space/Bandwidth/Website Plans.  Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer set bandwidth limits. This means that we set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

SERVICE UPTIME GUARANTEE

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 100% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

SSL CERTIFICATES

If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key. For security reasons, at no time will we release your private key, even per your request.

You acknowledge that Make Directory is an authorized reseller of SSL certificates, and You agree that Make Directory shall have no liability to You or to any other third party whatsoever as a result of, arising out of, or in relation to Your purchase of SSL certificate services from Make Directory.

THIRD PARTY SOFTWARE

Definition.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.  The Services shall be operated in the Linux® environments.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.  Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

DEFINITIONS; CONFLICTS

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.

ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.

FORCE MAJEURE.

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.

The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

ARBITRATION.

Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in Boson, Massachusetts in accordance with the rules then existing of the American Arbitration Association, provided however, that any injunctive relief including temporary restraining order or similar remedies may be pursued in the appropriate court.  The parties shall select a single mutually acceptable arbitrator knowledgeable about issues relating to Internet Services Development business and agreements.  All limitations of liability contained in the Agreement shall apply to any arbitration brought pursuant to this section.  The decision of an arbitrator or tribunal arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction in the United States.  The cost of arbitration shall be equally divided between the Developer and Client. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.

CONFIDENTIALITY.

Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Neither party shall, at any time, either directly or indirectly, use for its own benefit, nor shall it divulge, disclose, or communicate any information received from the other party that has been identified as Confidential. Upon request by an owner, all documents relating to the confidential information will be returned to such owner. Both parties agree to execute standard nondisclosure agreements in connection with this Agreement.

NOTICES.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered and signed for.

LIMITATION OF LIABILITY.

Notwithstanding the above remedies, the parties have discussed the risks and rewards associated with this Agreement and agree to allocate certain of the risks so that one contracting party’s total aggregate liability to the other contracting party will not exceed $I0,000.00 for any and all injuries, damages, claims, losses, expenses or claimed expenses (including attorneys’ and expert witnesses’ fees) arising out of this Agreement from any cause or causes, regard less of any warranties or indemnifications to the contrary in this Agreement such causes include, but are not limited to, either contracting party’s negligence, errors, omission , strict liability, breach of contract, or breach of warranty.

LIMITATION.

No action regardless of form, arising out of this Agreement shall be brought by Client more than two (2) years after such cause of action shall have occurred.

ENTIRE AGREEMENT.

This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written, unless specifically stated when entering future Contractual Agreements. This Agreement supersedes any prior written or oral agreements between the parties.

NO STRICT CONSTRUCTION.

In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

AMENDMENT.

This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

ASSIGNMENT OF RIGHTS.

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm corporation, or other entity without the prior, express, and written consent of the other party.

WAIVER OF CONTRACTUAL RIGHT.

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

INDEPENDENT CONTRACTOR.

Make Directory and User are independent contractors and nothing contained in this Agreement places Make Directory and User in the relationship of principal and agent, partners or joint ventures. 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.

APPLICABLE LAW.

This Agreement, entered agreement by both parties, shall be governed by the laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of laws thereof. Any dispute arising from these Terms shall be resolved exclusively in the state and federal courts of the Commonwealth of Massachusetts. The Client agrees and acknowledges that this Agreement was formed in Quincy, Massachusetts. 

VENUE/FORUM SELECTION CLAUSE.

YOU MUST READ, UNDERSTAND, AND AGREE WITH THIS CLAUSE BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT

You are working exclusively with a Boston, Massachusetts based company, Make Directory Developers, LLC. You and Make Directory Developers, LLC or any of its affiliates, or companies agree to submit to the jurisdiction of the courts located within the county of Suffolk, Commonwealth of Massachusetts.

YOU AGREE THAT MAKE DIRECTORY DEVELOPERS, LLC, ITS AFFILIATES AND COMPANIES HAVE REASONABLY COMMUNICATED THIS FORUM SELECTION CLAUSE TO YOU, YOU UNDERSTAND ITS TERMS, AND YOU HAVE ACCEPTED ITS TERMS.



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PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

OVERVIEW

This Hosting Agreement (this “Agreement”) is entered into by and between Make Directory Developers, LLC, a Massachusetts limited liability company (“Make Directory”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Make Directory’s Hosting services (the “Services”), and represents the entire agreement between you and Make Directory Developers concerning the subject matter hereof.Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to Make Directory. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site.

Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

ACCOUNT ELIGIBILITY

By registering for or using the Services, you represent and warrant that:You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

DESCRIPTION OF SERVICES

We offer varying plans of Hosting Services:

Cloud Server. If you purchase a Cloud Server, you will share a server cluster with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Web Hosting.  If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting.  If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Virtual Private Server (“VPS”).  If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”).

Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration.  Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.

You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration.  If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location.  We will perform website backups or archives in connection with a Hosting Migration upon request, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost.  You agree not to make any changes or revisions to your website during the migration process.

By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us.  You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.  You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Standard Hosting Migrations are not available for websites with over 100GB of data or more than 1,000,000 files, additional plans may be available upon request.

We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. We will disable and remove the plugin on your old site after the Hosting Migration has been completed upon request.

Enterprise Services Levels.  If we determine that any support request falls outside the scope of your plan, you can request additional support services (“Enterprise Services”) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Enterprise Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Enterprise Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims.

YOU MUST, WITHIN FOURTEEN DAYS OF ANY ENTERPRISE SERVICES, NOTIFY US IF THERE ARE ANY ISSUES WITH THE ENTERPRISE SERVICES. WE ARE NOT RESPONSIBLE FOR AND WILL NOT PROVIDE ASSISTANCE WITH ANY ISSUE(S) THAT ARISE BEYOND FOURTEEN DAYS OF ANY ENTERPRISE SERVICES.

LIMITATIONS; ACCOUNT TERMINATION

Migration of Servers.  You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.

Termination of Services.  You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and you will only be able to obtain a copy of such content for an additional fee.

Notice Regarding Licensed Images on Migration or Export (where available).  Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Make Directory hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions.  To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporporated therein, and you acknowledge and agree that Make Directory does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).

YOUR OBLIGATIONS

Auto-renewal. Unless otherwise provided, you agree that until and unless you notify Make Directory of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Justification.  You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats.  You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.  You further acknowledge and agree that Make Directory reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Make Directory’s discretion for security purposes.

In addition to the General Rules of Conduct listed in our “Blackboard” Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security.  You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are archive weekly; however we shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Make Directory complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. Make Directory does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.

The Services are not intended to provide a HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one, for this use you must purchase a dedicated hosting server. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.

Website/Server Content.  You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.

PROVISIONS SPECIFIC TO WEB AND WORDPRESS HOSTING

Storage and Plan Limits.  All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 500,000 inodes per account for Linux® hosting accounts. The plans are also limited to no more than 2,000 tables per database and no more than two gigabytes of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to upgrade to a dedicated server or may be temporarily or permanently suspended, in our sole discretion.

Basic Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 256MB of RAM; c) 1000 website connections; d) 100 active processes; e) 1 MB/s disk IO; f) 10 GB Storage; g) 75 GB/Month Bandwidth.

Standard Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 512MB of RAM; c) 2000 website connections; d) 200 active processes; e) 1 MB/s disk IO; f) 15 GB Storage; g) 150 GB/Month Bandwidth.

Business Linux hosting plan is subject to the following limitations: no more than a) 30% of one CPU core; b) 512MB of RAM; c) 10,000 website connections; d) 250 active processes; e) 1 MB/s disk IO; f) 25 GB Storage; g) 400 GB/Month Bandwidth.

In the event that the above limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

WordPress Hosting may only be used to host a WordPress website.  Only a single WordPress installation is allowed per website.  Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion.  Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.

You acknowledge and agree that inbound UDP is not support in shared hosting environments.

Website/Server Content.  Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Disk Space/Bandwidth/Website Plans.  Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer set bandwidth limits. This means that we set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

SERVICE UPTIME GUARANTEE

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 100% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

SSL CERTIFICATES

If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key. For security reasons, at no time will we release your private key, even per your request.

You acknowledge that Make Directory is an authorized reseller of SSL certificates, and You agree that Make Directory shall have no liability to You or to any other third party whatsoever as a result of, arising out of, or in relation to Your purchase of SSL certificate services from Make Directory.

THIRD PARTY SOFTWARE

Definition.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.  The Services shall be operated in the Linux® environments.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.  Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

DEFINITIONS; CONFLICTS

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.

ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.

FORCE MAJEURE.

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.

The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

ARBITRATION.

Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in Boson, Massachusetts in accordance with the rules then existing of the American Arbitration Association, provided however, that any injunctive relief including temporary restraining order or similar remedies may be pursued in the appropriate court.  The parties shall select a single mutually acceptable arbitrator knowledgeable about issues relating to Internet Services Development business and agreements.  All limitations of liability contained in the Agreement shall apply to any arbitration brought pursuant to this section.  The decision of an arbitrator or tribunal arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction in the United States.  The cost of arbitration shall be equally divided between the Developer and Client. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.

CONFIDENTIALITY.

Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Neither party shall, at any time, either directly or indirectly, use for its own benefit, nor shall it divulge, disclose, or communicate any information received from the other party that has been identified as Confidential. Upon request by an owner, all documents relating to the confidential information will be returned to such owner. Both parties agree to execute standard nondisclosure agreements in connection with this Agreement.

NOTICES.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered and signed for.

LIMITATION OF LIABILITY.

Notwithstanding the above remedies, the parties have discussed the risks and rewards associated with this Agreement and agree to allocate certain of the risks so that one contracting party’s total aggregate liability to the other contracting party will not exceed $I0,000.00 for any and all injuries, damages, claims, losses, expenses or claimed expenses (including attorneys’ and expert witnesses’ fees) arising out of this Agreement from any cause or causes, regard less of any warranties or indemnifications to the contrary in this Agreement such causes include, but are not limited to, either contracting party’s negligence, errors, omission , strict liability, breach of contract, or breach of warranty.

LIMITATION.

No action regardless of form, arising out of this Agreement shall be brought by Client more than two (2) years after such cause of action shall have occurred.

ENTIRE AGREEMENT.

This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written, unless specifically stated when entering future Contractual Agreements. This Agreement supersedes any prior written or oral agreements between the parties.

NO STRICT CONSTRUCTION.

In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

AMENDMENT.

This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

ASSIGNMENT OF RIGHTS.

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm corporation, or other entity without the prior, express, and written consent of the other party.

WAIVER OF CONTRACTUAL RIGHT.

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

INDEPENDENT CONTRACTOR.

Make Directory and User are independent contractors and nothing contained in this Agreement places Make Directory and User in the relationship of principal and agent, partners or joint ventures. 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.

APPLICABLE LAW.

This Agreement, entered agreement by both parties, shall be governed by the laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of laws thereof. Any dispute arising from these Terms shall be resolved exclusively in the state and federal courts of the Commonwealth of Massachusetts. The Client agrees and acknowledges that this Agreement was formed in Quincy, Massachusetts. 

VENUE/FORUM SELECTION CLAUSE.

YOU MUST READ, UNDERSTAND, AND AGREE WITH THIS CLAUSE BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT

You are working exclusively with a Boston, Massachusetts based company, Make Directory Developers, LLC. You and Make Directory Developers, LLC or any of its affiliates, or companies agree to submit to the jurisdiction of the courts located within the county of Suffolk, Commonwealth of Massachusetts.

YOU AGREE THAT MAKE DIRECTORY DEVELOPERS, LLC, ITS AFFILIATES AND COMPANIES HAVE REASONABLY COMMUNICATED THIS FORUM SELECTION CLAUSE TO YOU, YOU UNDERSTAND ITS TERMS, AND YOU HAVE ACCEPTED ITS TERMS.



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PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

OVERVIEW

This Hosting Agreement (this “Agreement”) is entered into by and between Make Directory Developers, LLC, a Massachusetts limited liability company (“Make Directory”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Make Directory’s Hosting services (the “Services”), and represents the entire agreement between you and Make Directory Developers concerning the subject matter hereof.Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to Make Directory. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site.

Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

ACCOUNT ELIGIBILITY

By registering for or using the Services, you represent and warrant that:You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

DESCRIPTION OF SERVICES

We offer varying plans of Hosting Services:

Cloud Server. If you purchase a Cloud Server, you will share a server cluster with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Web Hosting.  If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting.  If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Virtual Private Server (“VPS”).  If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”).

Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration.  Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.

You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration.  If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location.  We will perform website backups or archives in connection with a Hosting Migration upon request, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost.  You agree not to make any changes or revisions to your website during the migration process.

By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us.  You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.  You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Standard Hosting Migrations are not available for websites with over 100GB of data or more than 1,000,000 files, additional plans may be available upon request.

We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. We will disable and remove the plugin on your old site after the Hosting Migration has been completed upon request.

Enterprise Services Levels.  If we determine that any support request falls outside the scope of your plan, you can request additional support services (“Enterprise Services”) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Enterprise Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Enterprise Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims.

YOU MUST, WITHIN FOURTEEN DAYS OF ANY ENTERPRISE SERVICES, NOTIFY US IF THERE ARE ANY ISSUES WITH THE ENTERPRISE SERVICES. WE ARE NOT RESPONSIBLE FOR AND WILL NOT PROVIDE ASSISTANCE WITH ANY ISSUE(S) THAT ARISE BEYOND FOURTEEN DAYS OF ANY ENTERPRISE SERVICES.

LIMITATIONS; ACCOUNT TERMINATION

Migration of Servers.  You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.

Termination of Services.  You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and you will only be able to obtain a copy of such content for an additional fee.

Notice Regarding Licensed Images on Migration or Export (where available).  Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Make Directory hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions.  To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporporated therein, and you acknowledge and agree that Make Directory does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).

YOUR OBLIGATIONS

Auto-renewal. Unless otherwise provided, you agree that until and unless you notify Make Directory of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Justification.  You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats.  You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.  You further acknowledge and agree that Make Directory reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Make Directory’s discretion for security purposes.

In addition to the General Rules of Conduct listed in our “Blackboard” Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security.  You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are archive weekly; however we shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Make Directory complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. Make Directory does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.

The Services are not intended to provide a HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one, for this use you must purchase a dedicated hosting server. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.

Website/Server Content.  You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.

PROVISIONS SPECIFIC TO WEB AND WORDPRESS HOSTING

Storage and Plan Limits.  All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 500,000 inodes per account for Linux® hosting accounts. The plans are also limited to no more than 2,000 tables per database and no more than two gigabytes of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to upgrade to a dedicated server or may be temporarily or permanently suspended, in our sole discretion.

Basic Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 256MB of RAM; c) 1000 website connections; d) 100 active processes; e) 1 MB/s disk IO; f) 10 GB Storage; g) 75 GB/Month Bandwidth.

Standard Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 512MB of RAM; c) 2000 website connections; d) 200 active processes; e) 1 MB/s disk IO; f) 15 GB Storage; g) 150 GB/Month Bandwidth.

Business Linux hosting plan is subject to the following limitations: no more than a) 30% of one CPU core; b) 512MB of RAM; c) 10,000 website connections; d) 250 active processes; e) 1 MB/s disk IO; f) 25 GB Storage; g) 400 GB/Month Bandwidth.

In the event that the above limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

WordPress Hosting may only be used to host a WordPress website.  Only a single WordPress installation is allowed per website.  Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion.  Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.

You acknowledge and agree that inbound UDP is not support in shared hosting environments.

Website/Server Content.  Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Disk Space/Bandwidth/Website Plans.  Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer set bandwidth limits. This means that we set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

SERVICE UPTIME GUARANTEE

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 100% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

SSL CERTIFICATES

If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key. For security reasons, at no time will we release your private key, even per your request.

You acknowledge that Make Directory is an authorized reseller of SSL certificates, and You agree that Make Directory shall have no liability to You or to any other third party whatsoever as a result of, arising out of, or in relation to Your purchase of SSL certificate services from Make Directory.

THIRD PARTY SOFTWARE

Definition.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.  The Services shall be operated in the Linux® environments.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.  Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

DEFINITIONS; CONFLICTS

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.

ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.

FORCE MAJEURE.

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.

The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

ARBITRATION.

Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in Boson, Massachusetts in accordance with the rules then existing of the American Arbitration Association, provided however, that any injunctive relief including temporary restraining order or similar remedies may be pursued in the appropriate court.  The parties shall select a single mutually acceptable arbitrator knowledgeable about issues relating to Internet Services Development business and agreements.  All limitations of liability contained in the Agreement shall apply to any arbitration brought pursuant to this section.  The decision of an arbitrator or tribunal arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction in the United States.  The cost of arbitration shall be equally divided between the Developer and Client. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.

CONFIDENTIALITY.

Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Neither party shall, at any time, either directly or indirectly, use for its own benefit, nor shall it divulge, disclose, or communicate any information received from the other party that has been identified as Confidential. Upon request by an owner, all documents relating to the confidential information will be returned to such owner. Both parties agree to execute standard nondisclosure agreements in connection with this Agreement.

NOTICES.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered and signed for.

LIMITATION OF LIABILITY.

Notwithstanding the above remedies, the parties have discussed the risks and rewards associated with this Agreement and agree to allocate certain of the risks so that one contracting party’s total aggregate liability to the other contracting party will not exceed $I0,000.00 for any and all injuries, damages, claims, losses, expenses or claimed expenses (including attorneys’ and expert witnesses’ fees) arising out of this Agreement from any cause or causes, regard less of any warranties or indemnifications to the contrary in this Agreement such causes include, but are not limited to, either contracting party’s negligence, errors, omission , strict liability, breach of contract, or breach of warranty.

LIMITATION.

No action regardless of form, arising out of this Agreement shall be brought by Client more than two (2) years after such cause of action shall have occurred.

ENTIRE AGREEMENT.

This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written, unless specifically stated when entering future Contractual Agreements. This Agreement supersedes any prior written or oral agreements between the parties.

NO STRICT CONSTRUCTION.

In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

AMENDMENT.

This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

ASSIGNMENT OF RIGHTS.

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm corporation, or other entity without the prior, express, and written consent of the other party.

WAIVER OF CONTRACTUAL RIGHT.

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

INDEPENDENT CONTRACTOR.

Make Directory and User are independent contractors and nothing contained in this Agreement places Make Directory and User in the relationship of principal and agent, partners or joint ventures. 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.

APPLICABLE LAW.

This Agreement, entered agreement by both parties, shall be governed by the laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of laws thereof. Any dispute arising from these Terms shall be resolved exclusively in the state and federal courts of the Commonwealth of Massachusetts. The Client agrees and acknowledges that this Agreement was formed in Quincy, Massachusetts. 

VENUE/FORUM SELECTION CLAUSE.

YOU MUST READ, UNDERSTAND, AND AGREE WITH THIS CLAUSE BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT

You are working exclusively with a Boston, Massachusetts based company, Make Directory Developers, LLC. You and Make Directory Developers, LLC or any of its affiliates, or companies agree to submit to the jurisdiction of the courts located within the county of Suffolk, Commonwealth of Massachusetts.

YOU AGREE THAT MAKE DIRECTORY DEVELOPERS, LLC, ITS AFFILIATES AND COMPANIES HAVE REASONABLY COMMUNICATED THIS FORUM SELECTION CLAUSE TO YOU, YOU UNDERSTAND ITS TERMS, AND YOU HAVE ACCEPTED ITS TERMS.



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PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

OVERVIEW

This Hosting Agreement (this “Agreement”) is entered into by and between Make Directory Developers, LLC, a Massachusetts limited liability company (“Make Directory”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Make Directory’s Hosting services (the “Services”), and represents the entire agreement between you and Make Directory Developers concerning the subject matter hereof.Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to Make Directory. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site.

Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

ACCOUNT ELIGIBILITY

By registering for or using the Services, you represent and warrant that:You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorized and is a violation of this Agreement.If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.

DESCRIPTION OF SERVICES

We offer varying plans of Hosting Services:

Cloud Server. If you purchase a Cloud Server, you will share a server cluster with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Web Hosting.  If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting.  If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Virtual Private Server (“VPS”).  If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”).

Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration.  Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.

You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration.  If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location.  We will perform website backups or archives in connection with a Hosting Migration upon request, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost.  You agree not to make any changes or revisions to your website during the migration process.

By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us.  You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.  You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Standard Hosting Migrations are not available for websites with over 100GB of data or more than 1,000,000 files, additional plans may be available upon request.

We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. We will disable and remove the plugin on your old site after the Hosting Migration has been completed upon request.

Enterprise Services Levels.  If we determine that any support request falls outside the scope of your plan, you can request additional support services (“Enterprise Services”) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Enterprise Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Enterprise Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims.

YOU MUST, WITHIN FOURTEEN DAYS OF ANY ENTERPRISE SERVICES, NOTIFY US IF THERE ARE ANY ISSUES WITH THE ENTERPRISE SERVICES. WE ARE NOT RESPONSIBLE FOR AND WILL NOT PROVIDE ASSISTANCE WITH ANY ISSUE(S) THAT ARISE BEYOND FOURTEEN DAYS OF ANY ENTERPRISE SERVICES.

LIMITATIONS; ACCOUNT TERMINATION

Migration of Servers.  You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.

Termination of Services.  You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and you will only be able to obtain a copy of such content for an additional fee.

Notice Regarding Licensed Images on Migration or Export (where available).  Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for Make Directory hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions.  To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporporated therein, and you acknowledge and agree that Make Directory does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).

YOUR OBLIGATIONS

Auto-renewal. Unless otherwise provided, you agree that until and unless you notify Make Directory of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.

Justification.  You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats.  You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.  You further acknowledge and agree that Make Directory reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Make Directory’s discretion for security purposes.

In addition to the General Rules of Conduct listed in our “Blackboard” Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security.  You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are archive weekly; however we shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Make Directory complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. Make Directory does not monitor User Websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.

The Services are not intended to provide a HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one, for this use you must purchase a dedicated hosting server. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.

Website/Server Content.  You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.

PROVISIONS SPECIFIC TO WEB AND WORDPRESS HOSTING

Storage and Plan Limits.  All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 500,000 inodes per account for Linux® hosting accounts. The plans are also limited to no more than 2,000 tables per database and no more than two gigabytes of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to upgrade to a dedicated server or may be temporarily or permanently suspended, in our sole discretion.

Basic Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 256MB of RAM; c) 1000 website connections; d) 100 active processes; e) 1 MB/s disk IO; f) 10 GB Storage; g) 75 GB/Month Bandwidth.

Standard Linux hosting plan is subject to the following limitations: no more than a) 15% of one CPU core; b) 512MB of RAM; c) 2000 website connections; d) 200 active processes; e) 1 MB/s disk IO; f) 15 GB Storage; g) 150 GB/Month Bandwidth.

Business Linux hosting plan is subject to the following limitations: no more than a) 30% of one CPU core; b) 512MB of RAM; c) 10,000 website connections; d) 250 active processes; e) 1 MB/s disk IO; f) 25 GB Storage; g) 400 GB/Month Bandwidth.

In the event that the above limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

WordPress Hosting may only be used to host a WordPress website.  Only a single WordPress installation is allowed per website.  Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion.  Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.

You acknowledge and agree that inbound UDP is not support in shared hosting environments.

Website/Server Content.  Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Disk Space/Bandwidth/Website Plans.  Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer set bandwidth limits. This means that we set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

SERVICE UPTIME GUARANTEE

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 100% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

SSL CERTIFICATES

If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key. For security reasons, at no time will we release your private key, even per your request.

You acknowledge that Make Directory is an authorized reseller of SSL certificates, and You agree that Make Directory shall have no liability to You or to any other third party whatsoever as a result of, arising out of, or in relation to Your purchase of SSL certificate services from Make Directory.

THIRD PARTY SOFTWARE

Definition.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.  The Services shall be operated in the Linux® environments.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.  Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

DEFINITIONS; CONFLICTS

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.

ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.

FORCE MAJEURE.

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.

The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

ARBITRATION.

Any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration in Boson, Massachusetts in accordance with the rules then existing of the American Arbitration Association, provided however, that any injunctive relief including temporary restraining order or similar remedies may be pursued in the appropriate court.  The parties shall select a single mutually acceptable arbitrator knowledgeable about issues relating to Internet Services Development business and agreements.  All limitations of liability contained in the Agreement shall apply to any arbitration brought pursuant to this section.  The decision of an arbitrator or tribunal arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction in the United States.  The cost of arbitration shall be equally divided between the Developer and Client. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.

CONFIDENTIALITY.

Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Neither party shall, at any time, either directly or indirectly, use for its own benefit, nor shall it divulge, disclose, or communicate any information received from the other party that has been identified as Confidential. Upon request by an owner, all documents relating to the confidential information will be returned to such owner. Both parties agree to execute standard nondisclosure agreements in connection with this Agreement.

NOTICES.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered and signed for.

LIMITATION OF LIABILITY.

Notwithstanding the above remedies, the parties have discussed the risks and rewards associated with this Agreement and agree to allocate certain of the risks so that one contracting party’s total aggregate liability to the other contracting party will not exceed $I0,000.00 for any and all injuries, damages, claims, losses, expenses or claimed expenses (including attorneys’ and expert witnesses’ fees) arising out of this Agreement from any cause or causes, regard less of any warranties or indemnifications to the contrary in this Agreement such causes include, but are not limited to, either contracting party’s negligence, errors, omission , strict liability, breach of contract, or breach of warranty.

LIMITATION.

No action regardless of form, arising out of this Agreement shall be brought by Client more than two (2) years after such cause of action shall have occurred.

ENTIRE AGREEMENT.

This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written, unless specifically stated when entering future Contractual Agreements. This Agreement supersedes any prior written or oral agreements between the parties.

NO STRICT CONSTRUCTION.

In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

AMENDMENT.

This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

ASSIGNMENT OF RIGHTS.

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm corporation, or other entity without the prior, express, and written consent of the other party.

WAIVER OF CONTRACTUAL RIGHT.

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

INDEPENDENT CONTRACTOR.

Make Directory and User are independent contractors and nothing contained in this Agreement places Make Directory and User in the relationship of principal and agent, partners or joint ventures. 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.

APPLICABLE LAW.

This Agreement, entered agreement by both parties, shall be governed by the laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of laws thereof. Any dispute arising from these Terms shall be resolved exclusively in the state and federal courts of the Commonwealth of Massachusetts. The Client agrees and acknowledges that this Agreement was formed in Quincy, Massachusetts. 

VENUE/FORUM SELECTION CLAUSE.

YOU MUST READ, UNDERSTAND, AND AGREE WITH THIS CLAUSE BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT

You are working exclusively with a Boston, Massachusetts based company, Make Directory Developers, LLC. You and Make Directory Developers, LLC or any of its affiliates, or companies agree to submit to the jurisdiction of the courts located within the county of Suffolk, Commonwealth of Massachusetts.

YOU AGREE THAT MAKE DIRECTORY DEVELOPERS, LLC, ITS AFFILIATES AND COMPANIES HAVE REASONABLY COMMUNICATED THIS FORUM SELECTION CLAUSE TO YOU, YOU UNDERSTAND ITS TERMS, AND YOU HAVE ACCEPTED ITS TERMS.



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WHAT’S INCLUDED?

  • Unlimited Website Domains Supported
  • Unlimited Subdomains Supported
  • Dedicated Server IP
  • SSL (Security) Included for all domains
  • Backup Support Included (1 Year)
  • cPanel System Management

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Make Directory Developers is committed to the privacy of our web visitors and their personal information. This measure is intended for internal purposes and all email addresses submitted via this form will never be disclosed to any private groups or third parties.