This Software as a Service (SAAS) Agreement (this “Agreement”) also referenced as the Terms of Service (the “TOS”), is between Seven Hills Automation and IT (SHAAIT) a subsidiary of Smart Ways Est., and the person (individual or legal entity) whom purchases SHAAIT’s service and agrees to the Terms of Service during the set up process (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of SHAAIT’s SAAS service.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of SHAAIT’s credit approval requirements, SHAAIT agrees to provide the SAAS web software & hosting services as described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that SHAAIT generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a “Renewal Term”) unless SHAAIT or Customer provides the other with termination notice within 30 days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
3. Payments (SAAS)
- (a) Recurring Fees
- Renewal notices are emailed five days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged two days before your renewal notice is due. All payments submitted for services are non-refundable. Service will be made inactive on accounts that are not paid by the 14th day past due. The term “Account” describes all services provided to a customer as defined by the primary ownership email and physical address. SHAAIT reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. Any accounts made inactive for non-payment are subject to a $100.00 late payment fee. Any accounts terminated due to non payment are subject to a $100.00 restoration fee once all past due invoices have been paid.
- (b) Payment Terms
- All payments to SHAAIT, are non refundable after the first 3 days of service. If after the first 3 days of service you request the package to be converted to a different billing cycle any additional monies will be applied to your account in the form of credits and will not be refunded. Prior to paying a renewal invoice and before your renewal date you may have your payment terms changed at no additional charge. Any cancellation as the result of a violation of our TOS or AUP will be non refundable.
- (c) Credit/Debit card and your Address on File
- When an order is placed with a credit/debit card, your card is stored on file and will automatically be charged every month two days before your due date. For security purposes your address on file with us must match the address of your credit/debit card. If this address does not match, our payment gateway will not accept the transaction. If you have a credit card on file and the transaction is declined due to the address this transaction might show up as a pending charge but will not be processed through. If you have a debit card on file and the transaction is declined due to the address your bank will pull the money out of your account but this money will be refunded back to your account by your bank. It is recommended to always store a credit card on file instead of a debit card.
- (d) Taxes
- At SHAAIT’s request Customer shall remit to SHAAIT all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on SHAAIT, regardless of whether SHAAIT fails to collect the tax at the time the related services are provided.
- (e) 3 Day Money Back Guarantee
- All new SHAAIT Customers are eligible for a 3 day money back guarantee on all hosting packages upon written request. The definition of a new customer is one who has never purchased services from SHAAIT in the past. If the TOS/AUP agreed upon when ordering is violated this voids your eligibility for the 3 day money back guarantee. SHAAIT reserves the right to deny the refund if we feel abuse of services has occurred.
4. Cancellation and Early Termination (SAAS)
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event SHAAIT terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 12 (Termination), or Customer terminates the service other than in accordance with Section 12 (Termination) for SHAAIT breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. The cancellation request will be subject to the following guidelines:
- Cancellation request must be submitted 15 days prior to the invoice due date by email or to the billing department
- Cancellation request must be submitted from the main email address on file with SHAAIT
- Cancellation request must contain the main host name of the SAAS plan you wish to cancel
5. Refund and Return Policy (Software and Downloadable Products)
All non-cloud software and downloadable Products carry a no-refund policy. If a software or a downloadable product is purchased, then all sales made are final. please contact us before purchasing a software or a downloadable product at our support desk or contact page. All terms of service are subject to change.
6. Refund and Return Policy (Physical Products)
Our Physical Products carry a standing Thirty (30) Day refund period from the date of purchase. If a physical product has been purchased, the customer care department will issue a RMA number. When customers receive a RMA number, they are required to return the contents in full to the following address, the label for returning a physical product should look like this:
Seven Hills Automation & IT Attn: Returns Dept
P.O. Box 91044
Upon receipt of returned product, SHAAIT Refund Dept will process your refund within 7-10 days. 15% restocking fees applies. If you have any questions regarding these policies, please contact us at in our support desk or contact page. All terms of service are subject to change.
Customer agrees to use the service in compliance with applicable law and SHAAIT’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that SHAAIT may, in its reasonable commercial judgment consistent with industry standards, amend the AUP and TOS from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP and TOS are effective on the earlier of SHAAIT’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with SHAAIT’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between SHAAIT and Customer regarding the interpretation of the AUP, SHAAIT’s commercially reasonable interpretation of the AUP shall govern.
8. Customer Information
Customer represents and warrants to SHAAIT that the information he, she or it has provided and will provide to SHAAIT for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to SHAAIT that he or she is at least 18 years of age. SHAAIT may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless SHAAIT, SHAAIT’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
10. Disclaimer of Warranties
SHAAIT DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SHAAIT DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
11. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF SHAAIT AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR ONE MONTH OF SERVICE.
- (a) Suspension of Service.
- Customer agrees that SHAAIT may suspend services to Customer with or without notice and without liability.
- (b) Termination.
- SHAAIT reserves the right to terminate the Agreement or deny services at any time with or without notice and without liability. The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if SHAAIT fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. Termination in this manner does not absolve the customer of any required payments remaining on their initial or renewal term. The Customer may also terminate this agreement as per Section 4 and Section 6 respectively.
- Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
13. Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the SAAS hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 3 days of service you are not eligible for the 3 day money back guarantee and you are responsible to pay for any overage.
SHAAIT is offering domain registration as part of the SAAS service module. We are a reseller for Moniker so all SHAAIT customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by Moniker. You will receive notice from SHAAIT once your domain is up for renewal along with your yearly SAAS hosting package. If you do not renew your domain by the expiration date you run the risk of loosing your domain. If you choose to cancel your hosting plan with SHAAIT or fail to pay your renewal we will not be renewing your domain past the cancellation date of your SAAS hosting plan. We are not responsible for domains that expire if you no longer have an active SAAS hosting plan.
15. Requests for Customer Information
Customer agrees that SHAAIT may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that SHAAIT believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
16. Back Up Copy
SHAAIT highly recommends that all customers retain up to date backup copies of their data off site for disaster recovery purposes.
SHAAIT provides complementary backup services for our SAAS customers. These snap shots are taken every other day and stored for approximately 7-14 days. Customer agrees to maintain a current copy of all content hosted by SHAAIT notwithstanding any agreement by SHAAIT to provide back up services. Customer acknowledges that any backups provided by or for SHAAIT services are a courtesy service intended for disaster recovery only and that SHAAIT does not warrant or guarantee the availability, integrity, content or operability of these backups.
17. Request for Rebuild/Restore of Hosting Package
During any service term, customer may request up to two free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $100.00 one time fee will be enforced. If a customer requests a partial restoration of data a nominal fee of $100.00 will be charged for each request.
18. Changes to SHAAIT’s Network
Upgrades and other changes in SHAAIT’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. SHAAIT reserves the right to change its network in its commercially reasonable discretion, and SHAAIT shall not be liable for any resulting harm to Customer.
Notices to SHAAIT under the Agreement shall be given via electronic mail to the e-mail address of [email protected] or via our online ticketing system at https://support.shaait.net/. All notices, including but not limited to support or billing requests, must be submitted from a registered e-mail address on file for the customer account.
Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. It is the Customers responsibility to ensure valid and accurate contact information is supplied and updated as necessary. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
20. Force Majeure
SHAAIT shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond SHAAIT’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
21. Binding Arbitration
As a Customer of SHAAIT you agree to submit to binding arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The location of Arbitration shall be selected by SHAAIT at the time of the dispute.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on SHAAIT unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without SHAAIT’s prior written consent. SHAAIT’s approval for assignment is contingent on the assignee meeting SHAAIT’s credit approval criteria. SHAAIT may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
Last updated on 08/29/2017