User Agreement
1. General
1.1 This agreement governs your use of The SWMirror.com
Internet information service (the "Service") which is operated by K Software,
("K SOFTWARE"). Additional terms and conditions of use
applicable to specific areas of the Service may also be posted in such areas
and, together with this agreement, govern your use of those areas. This
agreement, together with any such additional term and conditions, are referred
to as this "Agreement."
1.2 K SOFTWARE reserves the right, in its discretion,
to change or modify all or any part of this Agreement at any time, effective
immediately upon notice published on the Service. Your continued use of the
Service constitutes your binding acceptance of these terms and conditions,
including any changes or modifications made by K SOFTWARE as permitted
above. If at any time the terms and conditions of this Agreement are no longer
acceptable to you, you should immediately cease all use of the Service.
2. Use of Content
2.1 You acknowledge that the Service contains
information, software, photographs, audio and video clips, graphics, links and
other material (collectively, the "Content") that are protected by copyright,
trademark or other proprietary rights of K SOFTWARE or third parties. All
Content on the Service is copyrighted as a collective work of K SOFTWARE
pursuant to applicable copyright law. You agree to comply with any additional
copyright notices, information, or restrictions contained in any Content
available on or accessed through the Service. Users of the Service may use the
Content only for their personal use.
2.2 You may not modify, publish, transmit, transfer or
sell, reproduce, create derivative works from, distribute, perform, display, or
in any way exploit any of the Content, in whole or in part, except as expressly
permitted in this Agreement. Content consisting of downloadable software may
not be reverse engineered unless specifically authorized by the owner of the
software's patent and/or copyright. You may post on the Service any Content
owned by you (such as your original statements), Content for which you have
received express permission from the owner and Content in the public domain.
You assume all risk and responsibility for determining whether any Content is
in the public domain. You grant to K SOFTWARE the right to edit, copy,
publish, distribute, translate and otherwise use in any medium any Content that
you place on the Service without compensation to you. You represent and warrant
that you are authorized to grant all rights set forth in the preceding
sentence.
2.3 You may download or copy the Content only for your
own personal use, provided that you maintain all copyright and other notices
contained in such Content. You shall not store electronically any significant
portion of any Content. Except as expressly permitted by the copyright laws, no
copying, storage, redistribution or publication of any Content is permitted
without the express permission of K SOFTWARE or the owners of such Content
or their authorized persons, if other than K SOFTWARE. You may download from
the Service any Content in the public domain for your own personal use or for
non-commercial redistribution.
3. Rules of Conduct
You shall not post on the Service any Content which (a) is
libelous, defamatory, obscene, pornographic, abusive, harassing or threatening,
(b) contains viruses or other contaminating or destructive features, (c)
violates the rights of others, such as Content which infringes any copyright,
trademark, patent, trade secret or violates any right of privacy or publicity,
or (d) otherwise violates any applicable law. You may not post on the Service
any links to any external Internet sites that are obscene or pornographic. You
shall not use the Service to distribute any advertising or solicitation of
funds or goods and services or to solicit users to join competitive online
services.
4. Managing Content
K SOFTWARE does not and cannot review the Content posted by
users on the Service and is not responsible for such Content. However, K SOFTWARE
reserves the right to delete, move or edit any Content (including
Content posted in any Interactive Area) that it may determine, in its sole
discretion, violates this Agreement or is otherwise unacceptable. You shall
remain solely responsible for all Content posted by you. K SOFTWARE shall
have the right, but not the obligation, to correct any errors or omissions in
any Content, as it may determine in its sole discretion.
5. No Endorsement
5.1 K SOFTWARE does not represent or endorse the
accuracy or reliability of any Content posted on any Interactive Area and you
acknowledge that any reliance upon such Content shall be at your sole risk. Any
Content placed on any Interactive Area by users are the views of the user
posting the statement, and do not represent the views of K SOFTWARE.
5.2 The Service may contain links to sites on the
Internet which are owned and operated by third parties (the "External Sites").
You acknowledge that K SOFTWARE is not responsible for the availability of,
or the content located on or through, any External Site. You should contact the
site administrator or Webmaster for those External Sites if you have any
concerns regarding such links or the content located on such External Sites.
6. Indemnity
You agree to indemnify, defend and hold K SOFTWARE and its
affiliates, and their respective officers, directors, owners, agents,
information providers and licensors (collectively, the "K SOFTWARE Parties")
harmless from and against any and all claims, liability, losses, costs and
expenses (including attorneys' fees) incurred by any K SOFTWARE Party in
connection with any use or alleged use of the Service under your password by
any person, whether or not authorized by you. K SOFTWARE reserves the right,
at its own expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you, and in such case, you agree to
cooperate with K SOFTWARE's defense of such claim.
7. Termination of Service
K SOFTWARE reserves the right, in its sole discretion, to
restrict, suspend or terminate your access to all or any part of the Service,
including the Interactive Areas, at any time for any reason without prior
notice or liability. K SOFTWARE may change, suspend or discontinue all or
any aspect of the Service at any time, including the availability of any
feature, database, or Content (including the Interactive Areas), without prior
notice or liability.
8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
8.1 NEITHER K SOFTWARE NOR ANY PROVIDER OF THIRD PARTY
CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES K SOFTWARE, ANY THIRD PARTY CONTENT
PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE
OBTAINED FROM USE OF THE SERVICE OR THE CONTENT. THE SERVICE AND THE CONTENT
ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF K SOFTWARE, THIRD
PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE SERVICE, ANY CONTENT OR ANY PRODUCTS OR SERVICES
SOLD THROUGH THE SERVICE. NEITHER K SOFTWARE NOR ANY THIRD PARTY CONTENT
PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICE
WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU
EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE
SERVICE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY
YOU.
8.2 NEITHER K SOFTWARE, ANY THIRD PARTY CONTENT
PROVIDER NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.3 SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES,
THE LIABILITY OF K SOFTWARE, THIRD PARTY CONTENT PROVIDERS AND THEIR
RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.4 IF YOU HAVE COMMITTED TO USING THE SERVICE BY PAYING SIX
MONTHS OR MORE IN ADVANCE, WHETHER BECAUSE OF SWMIRROR PRICING POLICY OR
BECAUSE OF AN OFFERED DISCOUNT, REFUNDS WILL NOT PROVIDED WITHOUT
SUBSTANTIAL PROOF OF EXCESSIVE SYSTEM DOWNTIME, EXESSIVE UNUSABILITY OR
EXESSIVE ERROR CONDITIONS. IF A DISPUTE CANNOT BE SETTLED IN ANY WAY
OTHER THAN CANCELLATION, AN EARLY TERMINATION FEE OF $60 USD WILL BE DEDUCTED
FROM THE REFUND AMOUNT AND THE REMAINDER PAID TO THE YOU WITHIN 60 (SIXTY)
DAYS.
8.5 WITH THE EXCEPTION OF DEDICATED SERVER CUSTOMERS, THERE IS
NO EARLY TERMINATION FEE FOR MONTH-TO-MONTH CUSTOMERS, SO YOU MAY CANCEL AT ANY
TIME. HOWEVER, REFUNDS WILL NOT BE GIVEN UNDER ANY CIRCUMSTANCES. FOR
DEDICATED SERVERS, A 30-DAY CANCELLATION NOTICE IS REQUIRED. THE EARLY
TERMINATION FEE WILL BE CALCULATED BY SUBTRACTING THE NUMBER OF DAYS LEFT IN
THE CURRENT MONTH FROM THE NUMBER 30, THEN MULTIPLYING THE DAILY COST OF YOUR
SERVICES (DETERMINED BY DIVIDING THE MONTHLY COST BY 30) BY THE RESULT.
9 Financial Arrangements:
9.1 Client agrees to an automatically-renewing monthly contract
beginning upon the receipt of payment by K SOFTWARE.
9.2 The first month hosting payment plus setup charges, if any,
shall be due upon receipt of order and before the order is set-up.
9.3 This Agreement will automatically renew for successive
month unless canceled per the Termination clause. Renewal prices are subject to
change. Renewal of services by Client indicates uncoditional agreement to
Agreement revisions and price changes.
9.4 Client is hereby agreeing and requesting to be enrolled in
an automated recurring payment system. Any and all additional services and
features used and ordered will be billed to the Client's credit card used at
sign-up; likewise, any and all renewal invoices will be billed to the same
card, unless the client updates the card-on-file accordingly. For clients with
month-to-month billing terms, recurring credit card billing is mandatory;
month-to-month terms are not available for clients without a credit card for
recurring billing on file.
9.5 Furthermore,
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(a) Client shall pay all invoices on or by the due date, in
full.
(b) Any and all disputes arising out of billing shall be
investigated and resolved only when there is no overdue balance (regardless of
any overdue balance being disputed) owing on the account.
(c) Failure to pay a disputed invoice in full by the due date
shall be interpreted as customer’s acknowledgement and acceptance of charges as
correct and no investigation or modification on the charges in question shall
be allowed after failure to pay, in full, by the due date.
(d) Late payments will incur a (a) $20 or 10% of total amount
due fee, whichever is less, if paid under a week late, (b) $50 or 20% of total
amount due fee, whichever is less, if paid one to two weeks late, or
(c) $200 or 30% of total amount due fee, whichever is less, if
paid more than two weeks late. The percentage penalty shall be calculated based
on the total amount invoiced. The lesser of the set fee or the percentage fee
shall be due.
(e) In case of service suspension due to no or incomplete
payment, where K SOFTWARE reserves the right to suspend or permanently
terminate all of Client's service(s) on the day following the payment due date
upon incomplete or no receipt of payment, a minimum of $10 reconnect fee per
account shall apply in order to resume service. No reconnect option shall be
available if service has been permanently terminated; full past term charges
and charges as per the Termination clause shall be due.
(f) Payment is deemed as paid on or by the due date if (a)
credit card payment is made and authorized on or by the due date, (b) wire
transfer is received in K SOFTWARE’s bank account on or by the due date, (c)
a certified cheque or money order is received by K SOFTWARE on or by the due
date, or (d) a business or personal check is received by K SOFTWARE 21 days
or more before the due date. All other payments shall be deemed late payments.
(g) K SOFTWARE reserves the right to charge a $25 service
fee for all bounced checks and rejected or declined credit card transactions.
(h) All charges for overages, including bandwidth overages and
storage overages, will be automatically charged to the card-on-record following
the last day of the month in which the overages occured. An invoice marked "Do
Not Pay" will be sent to the registered email address in PDF form, for your
records.
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9.6 In the case of a corporate client, the individual under
whose name the order is made is personally responsible and liable for all
payments due.
10. Service Level Agreement
Network AvailabilityK SOFTWARE is committed to
providing a reliable network for its Customers. With that goal, K SOFTWARE's
target for Network Availability is 99.9%.
K SOFTWARE's Network
Availability is defined as the percentage of minutes in a calendar month a
Customer circuit did not experience a Service Outage in that month. Network
Availability as a percentage is calculated:
| 1 - |
( |
Time to restore all outages in a single calendar month |
) |
x 100 |
Number of total minutes in the same month |
The availability target does not account for scheduled outages on K SOFTWARE's
network or events outside of K SOFTWARE's control, including, but not limited to,
force majeure events or Customer equipment outages. Network downtime is
calculated commencing with the date and time on which the Customer contacts
K SOFTWARE and a trouble ticket is opened, and ending upon confirmation from
K SOFTWARE that the network is restored.
If K SOFTWARE does not meet network availability per the above definition,
K SOFTWARE will credit the customer based on the amount of downtime experienced.
Each hour of downtime constitutes an hour of credit. Downtime in excess of five
(5) hours in one day will be considered an entire day. Credit is calculated
based on the monthly recurring fee and a thirty (30) day month.
Response Time
K SOFTWARE is committed to
providing the best customer care experience in the industry.
In the event that a trouble ticket is required, K SOFTWARE will provide updates
to the customer at least once daily on each open issue. Each issue will be
handled separately and will not be combined with another open issue unless
related to the open issue.
Severe and Chronic Problems
A Customer is
experiencing a severe problem if the aggregate service outage time experienced
is in excess of twenty-four (24) hours in any calendar month. If a subsequent
severe problem occurs within one calendar month following the calendar month in
which a customer experienced a severe problem , the problem will be considered
"chronic."
Upon verification of a chronic problem, a customer may request
that K SOFTWARE disconnect the service and any applicable early termination fees
will be waived.
11. Miscellaneous
This Agreement shall be construed in accordance with the laws of
the Commonwealth of Kentucky, and the parties irrevocably consent to bring any
action to enforce this Agreement in the federal or state courts located in Boyd
County, KY. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all previous written or oral agreements between the parties with
respect to such subject matter. If any inconsistency exists between the terms
of this agreement and any additional terms and conditions posted on the
Service, such terms shall be interpreted as to eliminate any inconsistency, if
possible, and otherwise, the additional terms and conditions shall control.
Sections 2, 6, 8 and 9 shall survive any termination of this Agreement as well
as any other provisions which by their terms or sense are intended to survive.
The services hereunder are offered by K SOFTWARE Enterprises,
a Kentucky company, located at 1312 Kentucky Ave, Ashland Kentucky 41102.
Please feel free to contact K SOFTWARE to resolve any complaint
regarding any aspect of service relating to this Website by writing to the
above address or calling +1-888-299-3197 or +1-859-514-0754, option number 3. Upon your request, you may have this
Agreement sent to you by e-mail. ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE
RESERVED BY K SOFTWARE ENTERPRISES.
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