You will be asked to sign a Service Order that describes the services you have chosen and the related fees. The Service Order will incorporate this Master Services Level Agreement and Acceptable Use Policy. It may also incorporate an addendum to this Master Services Level Agreement if you are purchasing services for which we have special legal terms. When we use the term "Agreement" in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the Service Order we prepare.
Defined words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the Dolphini Acceptable Use Policy posted at http://www.Dolphini.com/legal as of the date you sign the Service Order.
"Business Day" or "Business Hours" means 8:00 a.m. - 5:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement that the recipient should reasonably understand to be confidential, including:
"IT Hosting Service" means the information technology hosting services described in a Service Order and Master Service Level Agreement, plus Support.
"Personally Identifiable Information" or "PII" means:
"Service" or "Services" means the IT Hosting Service and any Supplemental Services we may provide to you, collectively.
"Service Commencement Date" means the date on which we provide the access codes that enable you to send and receive information to use the IT Hosting Service.
"Master Service Level Agreement" means the Master Service Level Agreement incorporated by reference in your Service Order.
"Supplemental Service" means any service we provide to you other than the IT Hosting Service.
Contingent on our satisfaction of Dolphini's customer credit approval criteria, Dolphini will provide the IT Hosting Service to the standards stated in the Master Service Level Agreement for the term of the Agreement. Dolphini will also perform those Supplemental Services that we agree with you in writing to perform.
You must use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to or from, or stored on, the Dolphini servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with Dolphini's Acceptable Use Policy. You must cooperate with Dolphini's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You must provide Dolphini with accurate information to help Dolphini determine if any tax is due with respect to the provision of the Services. You are responsible for keeping your billing and other account information up to date. You must pay when due on or prior to the due date, the fees for the Services stated in the Service Order(s) or other agreement between us.
All programs are not created equal! Therefore, Dolphini Networks does not guarantee to fulfill programming and/or debugging requests not created or programmed by Dolphini Networks Team. Dolphini Networks may perform 'best effort' support for programming issues related to programming done by our staff or initial installation and configuration on the selected Dolphini Networks Server environment. For example, a test script may be installed to verify that the server is functioning correctly. Dolphini Networks Support Team may be able to refer and/or recommend resources to assist the customer in resolving unsupported issues.
Dolphini Networks offers technological expertise pertaining to our hosting services. Fee-based categories include but not limited to website design, website repair, email repair, technology expertise, web development, and application development or consulting.
Dolphini Networks believes in one level of support: THE BEST WE CAN PROVIDE! Dolphini Networks provides Clients with Technical Support 24/7/365 via its online support ticketing system, in-person, phone and email.
Dolphini Networks provides a variety of monitoring services, so communication with customers may be necessary and/or part of a fee-based service. The customer is responsible for the prompt payment of fee-based services from Dolphini Networks of contact changes, such as e-mail address, phone numbers, and password changes as appropriate.
Dolphini Networks understands that you’re not always able to come into the datacenter to resolve an issue. Let Dolphini be your eyes, ears and hands in the datacenter. We have fully trained staff on site around the clock that is fully trained to assist you with your technical needs. Everything from a hard reboot to custom OS installs to resolving a DNS issue. We are here to help you every step of the way. Client understands and agrees that Dolphini will charge for action required services requested by Client at a minimum rate of $75.00 per hour per personnel need to complete the task.
Dolphini Networks offers Firewall Security Services for email filtering and http services designed to help prevent network and server infections or attacks. However, these services do not guarantee protection against any harmful events. The proliferation of viruses, Trojans or other infections on the Internet cannot be directly controlled. Therefore, Dolphini Networks cannot be held responsible for virus, Trojans, or any other infections that may occur.
Dolphini is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Dolphini's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
By submitting the signed service order and/or agreeing to the online terms and conditions, Customer hereby agrees to be bound by the service term selected on the online order form or via applicable promotional codes. The initial term begins on the Service Commencement Date and continues for the period stated in the Service Order. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of one month each unless and until one of us provides the other with thirty (30) days advance written notice of non-renewal.
Applicable activation and setup fee must be paid in full before Services can be used.
If Dolphini Networks suspends a Shared Hosting account for non-payment, Client shall be allowed to reinstate use of the Services within ten (10) business days upon approval and full payment of balances due. A re-instatement fee of $25.00 will apply.
Server rental and colocation charges will be incurred immediately at sign up of service order. If service begins after the First of the month, fees will be pro-rated for the remaining days of the month.
During the term of the Agreement, Customer shall pay the fees for the Services set forth on the online form, including initial installation fees and monthly recurring fees. If Shared Hosting Customers use bandwidth or disk space beyond what is set forth on the order form, Customer agrees to pay additional charges.
If you register a domain name(s) through Dolphini Networks, you acknowledge and agree to pay a registration fee(s) to register the domain name(s) with the applicable registrar. Dolphini Networks does not offer refunds for domain name registrations for any reason, including misspelling of the domain name.
If Client terminates this Agreement, you shall be responsible for any and all outstanding fees owed and agrees to pay any and all fees incurred by Client. For Services provided on a monthly basis, Client will be responsible for Service Fees incurred each month, regardless of when Client provides notice of termination. Discount/Prepaid Accounts If Client has agreed to a specific term in exchange for a discount of fees and/or has pre-paid Dolphini Networks for such Services; no refunds will be issued, even if cancelled before the pre-paid term ends.
Dolphini Networks does not, by default, limit the amount of bandwidth to the account/server unless required by the control panel software. If a Client wishes to have their bandwidth “Capped” or “Fixed” rate, we will do so upon request, software permitting. Additional fees will be charged for exceeding the network bandwidth allowance of your selected plan or according to your service order. This includes, but is not limited to any excess bandwidth resulting from server configuration changes made by the Client, Denial of Service attacks, in a way that unnecessarily interferes with the normal operation of the shared hosting system, or that consumes a disproportionate share of the resources of the system. or faulty applications or scripts.
Burstable Bandwidth Billing is a method of measuring bandwidth based on peak utilization. It also allows usage to exceed a specified threshold for brief periods of time without the financial penalty of purchasing a higher committed minimum usage rate.
Bandwidth is measured (or sampled) from the switch, router, recorded log files or software. Dolphini measures this rate at five (5) minute increments. At the end of the month, the measures and/or samples are sorted from the highest to the lowest, and the top 5% (which is equal to approximately 36 hours of a 30-day billing cycle) of data is dismissed. The next highest measurement becomes the billable utilization for the month.
Based on this model, the top 36 (top 5% of 720 hours) of peak traffic is not taken into account when billed for an entire month. Bandwidth could be utilized at a higher rate for up to 65 minutes per day with not financial penalty. When a customer/client goes over their minimum agreed upon committed rate in the Service Order, then the 95%’tile bandwidth burstable billing goes into effect at the rate agreed upon in the Services Order on a monthly basis.
Clients subscribing to monitoring services will be responsible for ensuring that monitored ports are accessible by our monitoring system. Monitoring services may be inhibited by use of a firewall, intrusion detection system, or customer server configuration. Dolphini Networks will not be responsible for notification failures or false notifications that result.
Should an ongoing problem result in a high frequency of monitoring notifications, Dolphini Networks will work directly with Client to resolve the issue. Dolphini Networks may recommend that Client take specific action to resolve the issue so that it does not impact our ability to effectively support other Clients. Should you choose not to follow our recommendation, Dolphini Networks reserves the right to discontinue the monitoring services.
Clients subscribing to backup processing Services from Dolphini for a fee-based service, and Shared Hosting Clients can request restoration of files automatically archived by Dolphini Networks. However, Dolphini Networks does not guarantee the existence, accuracy, or regularity of its backup Services. Therefore, the Client is responsible for backing up their files. We suggest downloading a copy of data to a personal computer or disk. Dolphini Networks also does not guarantee the accuracy and quality of backup processes provided by third party software, such as individual third party control panels.
Back-up processing is not guaranteed when data is being backed up or duplicated to an on-board disk drive. The Client is responsible for ensuring that backup processing is occurring as well as verifying the existence and accuracy of the data being backed up. For mission critical data, Dolphini Networks highly recommends higher quality off-server backup services as well as periodic local backups.
Clients requesting data restoration must provide a listing of the directories and/or files to be restored and the location that the data should be returned to. Requests for the restoration of database data will result in the restoration of the database in its entirety. After restoration, it is the Client's responsibility to verify the accuracy of the data and take any further actions necessary for the data to be usable.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Dolphini is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or higly restricted under United States export regulations.
Dolphini may change our Acceptable Use Policy “AUP” to add restrictions on your use of the Services provided that any new restrictions are reasonable and consistent within the hosting industry. Any changes to the AUP made during the term of your Agreement will become effective as to you upon the first to occur of:
You agree that we may suspend Services without liability if:
You may terminate the Agreement for breach if:
Dolphini may terminate the Agreement for breach if:
If a Client terminates their account, Dolphini Networks will disable the server and/or account access on the day the Client specifies. It is the responsibility of the Client to remove any data off the server prior to the date provided in their cancellation notice. Dolphini Networks will not maintain an archival copy of the Clients data files. No refunds of any kind will be given if Client chooses a date before the end of the current billing cycle and/or contract terms. Client will remain obligated and have to pay the remaining terms of the Service Order within the following 30 days after written cancelation request.
If you terminate the Agreement for convenience or we terminate the Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term.
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
You agree that we may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on the Dolphini Web site.
THE SERVICES AND THE DOLPHINI NETWORKS SITE ARE PROVIDED TO CLIENT ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE DOLPHINI NETWORKS SITE, ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS. DOLPHINI NETWORKS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FORGOING, WITHOUT LIMITATION: ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICUALAR PURPOSE, NON-INFRINGEMENT OR ARISING UNDER FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DOLPHINI NETWORKS SPECIFICALLY DISCLAIMMS ANY WARRANTY THAT (1) THE SERVICES WILL BE UNINTERUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
IN NO EVENT SHALL DOLPHINI NETWORKS BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE DOLPHINI NETWORKS SITE OR ANY DOLPHINI NETWORKS PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL DOLPHINI NETWORKS CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN FIVE HUNDRED DOLLARS ($500 US).
THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY ARE MATERIAL TO THIS AGREEMENT.
We are not liable to you for failing to provide the IT Hosting Service unless such failure results from a breach of the deployment guaranty stated in the Service Order Form, a breach of the Master Service Level Agreement, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The dollar credits stated in the Service Order Form and Master Service Level Agreement are your sole and exclusive remedy for our failure to meet those guaranties for which dollar credits are provided unless such failure is due to Dolphini's willful misconduct. Termination of the Agreement is your sole and exclusive remedy for our failure to meet Master Service Level Agreement.
Dolphini (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall Dolphini be liable to you for any punitive damages.
Dolphini is not liable to you for lost data unless and to the extent you purchase data backup services from Dolphini and we fail to provide the backup services as agreed. You release Dolphini from any and all liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of Dolphini and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed one times the monthly recurring fee payable under the Service Order(s) in effect for the configuration at the time of the occurrence of the event(s) giving rise to the claim.
Client may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft's license terms that appear at www.Dolphini.com/legal. If you resell any part of the IT Hosting Service that includes Microsoft software then you must include these Microsoft terms in a written agreement with your customers.
We may from time to time arrange for you to purchase or license third party software, services or other products that are not included as part of the IT Hosting Service, either as part of the Integrated Solution Partner Program or other Supplemental Service. DOLPHINI MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND DOLPHINI, SUCH SERVICES ARE PROVIDED "AS IS." Your use of any third party software, services, and other products is governed by the terms of your agreement with the third party.
You may resell the IT Hosting Service and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Service by any third party to the same extent as if you were using the Service yourself. Dolphini will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services should be sent to your dedicated Dolphini account manager using the www.Dolphini.com/support customer portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class United States mail to:
Dolphini's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that Dolphini may give notice of an amendment to the AUP by posting the notice on our website www.Dolphini.com/legal. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to our www.Dolphini.com website after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
You do not acquire any ownership interest in or right to possess the servers or other hardware we provide for your use, and you have no right of physical access to the hardware. We do not acquire any ownership interest in or right to the information you transmit to or from or store on our Dolphini servers or other devices. On termination or default of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name that belongs to you) and agree that we may take steps to change or remove any such IP addresses.
If Dolphini or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and Dolphini is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Dolphini may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
You may not assign the Agreement without Dolphini's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization, financial or a sale of our business.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as failure of a part of the power grid, Internet access, natural disaster, war, riot, insurrection, epidemic, strikes, social unrest or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Tennessee, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Davidson County, Tennessee, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Dolphini Corporation or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
If you sign multiple Service Orders for a single configuration - for example, to add a server or additional services, then the Master Services Level Agreement, Sub-Agreement(s), and Acceptable Use Policy referenced in the last signed Service Order will govern the entire configuration.
Except for amendment to the AUP as described in Section 10 above, the Master Services Level Agreement, Acceptable Use Policy and Service Level Agreement may be amended only by a formal written agreement signed by both parties.
A Service Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail or the Dolphini ticketing system that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies services in connection with a configuration established by a Service Order shall be deemed to be an amendment to that Service Order, notwithstanding the fact that the correspondence does not expressly refer to the Service Order.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Service Order, the Master Service Level Agreement, any addendum to the Master Service Level Agreement, the Acceptable Use Policy and Terms Of Service. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 8, 14, 15, 16, 17, 18, and 28, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
The Agreement is the complete and exclusive agreement between you and Dolphini regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
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