This Terms of Service Agreement (“TOS”) is entered into between the entity (“Customer”, “Client”, “you”, “your”) purchasing or using services provided by or through mightylittlewebsites.com® (“MLW”, “we”, “us”, “our”), and MLW, its parent companies, subsidiaries, affiliates and partners. MLW is owned and operated by media schmedia LLC, a domestic limited liability company registered in the state of Ohio. The term “parties” will refer to, and include, both customer and MLW.
MLW provides hosting through Hosting.com, a third party vendor. Hosting.com manages and maintains the servers, infrastructure and hardware related to its hosting network. For purposes of this agreement, references to the network, infrastructure and hardware refer to those provided through our partnership with Hosting.com.
Both parties, MLW and you, are bound by this TOS when your first payment is processed. This TOS contains provisions that you are required to apply to your own customers (“End Users”). It is your responsibility to ensure that these provisions are included in contracts and other agreements with your End Users. You are responsible for and to your End Users under this TOS and the other incorporated agreements.
1. Services we provide to you.
The features and details of the Services governed by this TOS are described at “mightylittlewebsites.com” for the specific Services you selected. Services from MLW may include, but are not limited to, templates, plug-ins, themes, software, code and other products, that function together as an integrated system. Throughout this TOS, the aspects of the Services provided to you by MLW or through us by third party vendors, are referred to together as the “Service,” or “Services.”
Any unauthorized modification of the Service or the installation of third party plug-ins/software by the client, end user, or third party, may interfere with the function of the integrated system and/or Services provided to you by MLW and may prevent effective service of your account. Therefore, MLW does not provide support, does not provide any warranties, and/or disclaims all liability for unauthorized modification of the Service as described above.
MLW provides the Service to you based on the description of your selected Service on “mightylittlewebsites.com” as of the Effective Date. The Effective Date of this TOS will be the day on which you initially make payment. Should the description change subsequent to the Effective Date, MLW has no obligation to modify the Service to reflect such a change.
Certain aspects of the Service may be provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the products, services or equipment provided by them and incorporated into the Service. If one of our third party providers makes a change to its products, services or equipment, you may not terminate this TOS based on such a change, even if it materially affects the Service.
This TOS incorporates policies from our third party vendors who provide products and/or services through us to you. These policies are “passed through” to you by this TOS. You are strongly encouraged to review these policies prior to agreeing to be bound by this TOS.
The MLW Service supports a connection to PayPal if you need to accept payments from your customers. You assume all responsibility for collection of payments and your relationship with the payment service. MLW assumes no responsibility for verification or for the security of financial transactions or data transmitted from your site.
You are solely responsible for obtaining, renewing, and monitoring any required licenses, including but not limited to, vendor’s licenses, import/export licenses, and/or any other license that may be required under federal or state law. You are solely responsible for any sales tax liabilities. MLW bears no responsibility for any requisite licenses you fail to acquire, taxes you fail to collect, or payments you fail to make.
MLW reserves the right to change any and all third party vendors at any time; such changes do not alter your rights and obligations under the Terms of Service and the other incorporated agreements, except where such rights and obligations are in part determined by policies of the third parties.
2. Contact Information.
You are required to provide us with accurate information including but not limited to, e-mail addresses, telephone contacts, billing address and mailing address, when setting up your account, during the course of our relationship, and when corresponding with us.
On occasion, we may need to communicate with you by e-mail about the Service. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.
The entity set out by you in our records is considered by us to be our customer. In all instances, including if you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records are accurate. You will need to ensure our records accurately reflect who owns the domain name associated with your use of the Service, and who has permission to access the Services .
This TOS will begin on the Effective Date and continue for the term set out on our Sign Up page (“Initial Term”). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (“Renewal Term”) unless you cancel the Service. Any such cancellation must be in accordance with the terms of this TOS and be in writing. If the Sign Up page does not contain an Initial Term, the Initial Term shall be one month.
You are responsible for the fees and charges set out on the Service Description and Sign Up page (“Fees”). On the Effective Date, you will be charged a set-up fee, any domain name registration fees, and first month’s Service fees. After your initial payment, you will be charged automatically for each subsequent month’s Service fee and any other recurring fees for products or services you have elected. You may be charged up to seven (7) days prior to the first day of your next Renewal Term (“Due Date”).
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Domain name registration charges are not refundable for any reason. Set up fees are not refundable except under the terms of the Money Back Guarantee in Section 6.1 below and the Refund Policy in Section 6.2.1.
MLW uses a PCI-compliant third-party intermediary to process payments. MLW may provide your payment information to the third-party intermediary for the sole purpose of processing on MLW’s behalf. While MLW may store your billing information to contact you, MLW does not store your payment information, including credit card number, type or expiration date. Your payment information may be stored by our third-party payment intermediary according to PCI standards.
If the Fees are not paid by you or your financial institution by the Due Date, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges; (iv) any fees levied on us by our financial institution; (v) legal fees related to the delinquency; and/or (vi) an investigation fee of up to $200.
You may choose to purchase products and services that are not included in the Service but which are offered for sale by other parties through MLW (“Third Party Services”). Third Party Services may be billed separately from the Service. Fees for the Third Party Services might not be billed on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.
If you are an Ohio resident, we may be required to charge sales tax for some or all of the Services provided to you. If you are not an Ohio resident, you may still be responsible for paying a tax on these Services, which we may or may not be required to collect directly. This is subject to any changes in the federal or applicable state tax laws.
5. Bill disputes.
If you believe there is an error on your bill you must contact us in writing. (See Section 13.1, Notices) MLW and you agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by us at least five (5) days prior to the Due Date (“Dispute Deadline”). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a “charge back” based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $200 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.
6.1. Money Back Guarantee.
The Service carries an unconditional 30 day satisfaction guarantee (“Guarantee”). To cancel the qualifying Service and receive a refund, contact us within the first 30 days of the Effective Date for the particular Service. If you wish to retain your domain name, the cost of your domain name will be deducted from your refund at our regular, non-discounted, domain name price. If you paid us by credit card we will credit the card you used for payment, otherwise we will send you a check to the mailing address provided to us as per Section 2, Contact Information.
The Guarantee only applies to an individual Service for 30 calendar days following the Effective Date. If you purchase more than one Service from us, the Guarantee only applies to the Service that falls within this 30 day period.
6.2. Termination for convenience.
Either party may terminate the Service by providing written notice (See Section 13.1, Notices) to the other no later than 10 days before the expiration of the Initial Term or Renewal Term for that particular Service.
6.2.1 Refund Policy.
If, after the first 30 days, you choose to terminate the Service (see 6.2, Termination for convenience), we will refund the unused portion of your current Renewal Term service agreement for which you’ve been charged, on a prorated basis. After 30 days we will no longer refund your set-up fee.
If you purchased your domain name through MLW, the cost of your domain name will be deducted from your refund at our regular, non-discounted, domain name price. If you paid us by credit card we will credit the card you used for payment, otherwise we will send you a check to the mailing address provided to us as per Section 2, Contact Information.
If your account is delinquent, if you violate our TOS or any other incorporated document, and we suspend or terminate the Service, you will not receive a refund of any fees paid to us.
6.3. Termination for material breach.
One party may terminate this TOS upon the occurrence of a material breach, if this breach has not been cured by the other party within 30 days of their receipt of written notice of the breach. (See Section 13.1, Notices) A material breach shall be determined from the perspective of a reasonable business person with significant experience conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. Third Party Services may be part of the Service. A decision to cease offering Third Party Services will not be considered a material breach.
6.4. Termination for your violation of our policies.
We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you receive a refund of any Fees.
6.5 Ownership of user generated content.
MLW claims no intellectual property rights over the material you provide to the Service. Any content uploaded and not provided by MLW remains yours. At any time before termination, you can remove your content.
Upon termination or expiration, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to migrate your content, and/or forward your e-mail or other communications.
7. Use of the Services.
Your use of the Services must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you excess bandwidth fees, to the extent that they exceed the use of the Service of similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Service.
You agree to cooperate with us to facilitate your use of the Service. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Service.
8. Licenses and Intellectual Property.
8.1. License from MLW to you.
MLW grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by us or our hosting provider solely to access and use the Service. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in our or our hosting provider’s technology shall remain with MLW, our hosting provider, or our respective licensors. You are not permitted to circumvent any devices designed to protect our, our hosting provider’s, or our respective licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
Any license provided to you, is provided with “RESTRICTED RIGHTS” applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this TOS and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
8.2. Licenses from you to MLW.
We may use information you provide to us for technical support, implementation, operation or administration of the Service (“Operational Information”). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.
You grant MLW, and any third parties used by MLW to provide the Service, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the Service. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, your End Users, or your licensors.
9. Representations and Warranties.
MLW and you each warrant to the other that: (i) each has the power, authority and legal right to enter into this TOS; and (ii) each has the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.
9.2. Your Representations and Warranty.
You represent and warrant to MLW that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v) that you understand that you may not be able to access location based services, such as “911” emergency calls, using the Service; (vi) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vii) that you will make back up copies of your data and/or (viii) that you will pass through the terms of our Acceptable Use Policy to End Users.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to MLW, or which may be accessed or transmitted using the Service. You also warrant that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
This site may be hyper-linked to other sites, which are not maintained by, or related to, MLW. Hyper-links to such sites are provided as a service to users and are not sponsored by or affiliated with MLW. MLW has not reviewed any or all of such sites and is not responsible for the content of those sites. MLW makes no representations, warranties about the content, completeness or accuracy of these hyper-links or sites hyper-linked to this site. MLW provides hyper-links as a convenience and the inclusion of any hyper-link to a third-party site does not necessarily imply endorsement by MLW of that site, the site’s services/goods, or any association with its operators.
The Service is provided on an as-is and as-available basis. Other than as expressly set out in Paragraph 9.1, MLW has not, and does not, make any warranties whether express or implied. This disclaimer includes, but is not limited to, the warranties of non-infringement, fitness for a particular purpose, warranties of merchantability and title. MLW does not warrant that the service will be uninterrupted, error-free, secure, or free from viruses or other harmful components. MLW is not liable, and expressly disclaims any liability for the content of any data transferred either to or from you or stored by you or an end user via the service provided by us. MLW specifically disclaims any and all warranties regarding services provided by third parties, regardless of whether those services appear to be provided by MLW. No warranties made by these third party entities to MLW shall be passed through to you, nor shall you claim to be a third party beneficiary of such warranties.
This warranty disclaimer extends to any oral or written information you may have received from MLW, its employees, third-party vendors, agents or affiliates. You may not rely on such information.
Some states do not allow MLW to exclude certain warranties. If this applies to you, your warranty is limited to 90 days from the effective date for an individual service.
11. Limitation of Liability.
You agree that MLW has no liability, whatsoever, for (i) content that you or an End User access from the Internet; (ii) for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system; and/or (iii) for your inability to access the publicly switched telephone network.
In no event will MLW’s liability hereunder exceed the aggregate fees actually received by MLW from you for the three (3) month period immediately preceding the event giving rise to such liability. For the purposes of this paragraph only, the term mightylittlewebsites.com shall be interpreted to include MLW’s employees, agents, owners, directors, officers, affiliates, and third parties providing services to you through MLW.
You agree that, to the maximum extent permitted by applicable law, you will not under any circumstances including, but not limited to, negligence, hold MLW or is licensors, employees, agents, owners, directors, officers, affiliates and/or third party vendors, liable for any indirect, incidental, special, consequential or punitive damages whatsoever including, but not limited to, damages for loss of profits, cost savings, revenue, business, data or use, or any other pecuniary loss by you, any of your End Users or any other third party. You agree that the foregoing limitations apply whether in an action in contract or tort or any other legal theory and apply even if MLW has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion or liability for incidental or consequential damages; you agree that in those jurisdictions MLW’s liability will be limited to the extent permitted by law.
You agree to indemnify, defend and hold harmless MLW and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Service; (ii) any violation by you of any of MLW’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS or the other incorporated agreements; and/or (iv) any acts or omissions by you. The terms of this Section shall survive any termination of this Agreement. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) include you, End User, visitors to your website, and users of your products or services, the use of which is facilitated by us.
MLW shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued U.S. patent. This indemnification provision is expressly limited to the Service that is fully owned by MLW. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in its agreements with third-party suppliers, MLW shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying MLW promptly in writing (See Section 13.1, Notices) of the claim and giving MLW full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense.
If such claim has occurred, or in MLW’s opinion is likely to occur, you agree to permit MLW, at its option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate MLW’s obligations and your rights under this TOS with regard to such Service and refund to you the Fees actually received by MLW from you during the three (3) month period immediately preceding the occurrence of the event on which the indemnification claim is based, plus the prorated balance of any recurring services prepaid by you for a term beyond that of the occurrence date.
13. General Provisions.
Notices will be sent to you at one or more of the addresses provided to us under Section 2, Contact Information, including but not limited to your email address, billing address and/or mailing address. It is your obligation to ensure that we have the most current information for you in our records. Notices sent via email are deemed to be received by you 24 hours after an email is sent, unless we receive a notice that the email address is invalid. Registered mail and first class-post will be deemed received by you three (3) days following the date of mailing.
Required written notices, sent from you to MLW, as discussed in this Agreement, must be in writing and sent via:
USPS Certified Mail, return receipt requested, to:
PO Box 22821
Beachwood, OH 44122
AND cc’d via email to: [email protected].*
Notices sent via email are deemed received when, within three (3) business days, MLW sends a confirmation email to the sender’s email address. The date and time stamp on the confirmation email shall be the official received date and time. If sender does not receive a confirmation within three (3) business days, sender is advised to check his or her SPAM email folder or try contacting MLW again.
Notices regarding this TOS and other MLW policies should also be directed to [email protected].
*Please refer to our website, mightylittlewebsites.com, for contact information for most issues, including technical support and billing.
13.2. Force Majeure.
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
13.3. Choice of Law, Jurisdiction and Venue.
Disputes between MLW and the customer shall be brought before the U.S. District Court Northern District of Ohio. If the District Court may not consider the dispute, all disputes shall be brought before the Ohio Supreme Court or the Cuyahoga County Court of Common Pleas.
Disputes involving Hosting.com shall be brought before U.S. District Court for the District of Delaware located in Wilmington, Delaware (District Court). If the District Court does not accept the dispute for consideration, all disputes shall be brought before the Delaware Superior Court, or the Delaware Court of Common Pleas, each located in Wilmington, Delaware.
The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court.
State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of Ohio. If Hosting.com is involved in the dispute the substantive law of the State of Delaware shall apply. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
13.4. No Waiver.
No waiver of rights under this TOS, or any MLW policy, or agreement between you and MLW shall constitute a subsequent waiver of this or any other right under this TOS.
This TOS may be assigned by MLW. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of MLW and you.
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this TOS shall remain in full force and effect.
13.7. No Agency.
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
The following paragraphs shall survive the expiration or termination of this TOS: The Incorporation by Reference (Paragraph 3, Introduction), Bill Disputes (Section 5), Disclaimers (Section 10), Limitation of Liability (Section 11), Indemnification (Section 12), Notices (Section 13.1), Choice of Law, Jurisdiction and Venue (Section 13.3).
All modifications to this TOS must be in writing. No oral modifications will be considered part of the TOS. Any previous Terms of Service agreements are hereby superseded and this TOS, including any and all documents incorporated by reference, constitute the entire agreement. MLW reserves the right to change the terms, conditions, and/or notices under which the Service is offered, including but not limited to the charges, if any, associated with the use of the Service. You are responsible for regularly reviewing these terms and conditions and your continued use of the Service acknowledges your agreement.
Your clicking of the checkbox during our customer signup process, affirming your awareness and acceptance of our Terms of Service, signifies your understanding and acceptance of this Terms of Service agreement plus related documents incorporated by reference.