PhoenixiTek Terms Of Service Terms Of Service 1stPositionRanking.com

1stpositionranking Terms Of Service

These Terms of Service (the “Agreement”) are an agreement between Phoenix Unlimited, LLC. doing business as 1stpositionranking (“1stpositionranking”) and you (“Customer,” “you” or “your”). This Agreement sets forth the general terms and conditions of your purchase and use of the products and services provided by 1stpositionranking and of the 1stpositionranking website (collectively, the “Services”). By purchasing and/or using the Services, you agree to be bound by this Agreement.

We may change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the 1stpositionrankingwebsite for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services.

1stpositionranking Terms Of Service 1. Policies

1stpositionranking Terms Of Service The use of the Services is also governed by the following policies, which form part of this Agreement. By using the Services, you are also agreeing to the terms of the following policies:

Privacy Policy
Acceptable Use Policy
DMCA Policy

Additional terms may apply to certain Services you purchase or receive through 1stpositionranking including services provided by a third party. Such additional or third party services may be subject to additional terms that may be separately provided to you.

2. Account Ownership and Services Purchased

We treat the individual or entity named in our records as the primary billing contact as the owner of the account.

The Services offered by 1stpositionranking is hosted on servers located in the United States (U.S.) unless otherwise expressly provided. By using the Services, you freely and specifically give 1stpositionranking your consent to export your information and data to the U.S. regardless of where your Services or domains are hosted. You understand that data stored in the U.S. may be subject to lawful requests by the courts or law enforcement authorities in the U.S.

Any features and details of the Services may be described on the web pages setting out the particular Services you have purchased. 1stpositionranking may modify, change or discontinue any aspect of the Services at any time.

Certain Services are provided by third parties and may be subject to such third parties’ terms and conditions..

3. Term of the Services

The initial term of the Services you purchase shall be for the period set forth in the registration form presented to you when you order the Services (the “Initial Term”). Unless you cancel prior to the end of the Initial Term, the Services will automatically renew for periods of equal length as the Initial Term (each a “Renewal Term”) unless otherwise provided. The Initial Term and all Renewal Terms, if any, shall be collectively referred to as the “Term.”

4. Payments and Billing

Unless otherwise provided, 1stpositionranking will automatically bill your payment method on file as follows: (i) up to fifteen (15) days prior to the end of your then current Term for all Services on a one (1) year plan or longer; (ii) up to five (5) days prior to the end of your then current Term for plans of less than one (1) year. You expressly acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file for each Renewal Term, unless you terminate or cancel the Services prior to such charge as provided in this section. All fees are billed in United States Dollars (“USD”) and are subject to change with prior notice to you. We will provide you with at least thirty (30) days’ notice of your renewal pricing before charging you on any annual or longer term plans.

1stpositionranking is only able to automatically collect payment from customers with credit cards stored on file or active PayPal agreements and/or subscriptions. All other payment methods (e.g. one- time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by you. It is your responsibility to ensure that all fees are paid no later than their due date.

As a customer of 1stpositionranking , it is your responsibility to ensure that all billing information on file with 1stpositionranking is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. 1stpositionranking screens all orders for fraud. In certain cases, if your account is flagged for fraud, your order will not be processed. 1stpositionranking has no liability for not providing Services, including third party services, if your account fails the fraud screen.

5. Late Payments

Any account not paid in full by the end of the Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, 1stpositionranking reserves the right to suspend your Services and to charge a ten dollar ($10) late fee for reinstating the Services. 1stpositionranking reserves the right to terminate Services fourteen (14) days following suspension of Services for non-payment.

1stpositionranking is not responsible for any damages or losses (including of any data) as a result of suspension or termination for non-payment of your account. In addition, 1stpositionranking reserves the right to refuse to re-activate your Services until any and all outstanding invoices have been paid in full.

6. Refund Policy and Billing Disputes

1stpositionranking provides a money-back guarantee on shared web hosting and reseller packages as well as VPS Hosting (the “Money-back Guarantee Refund”), subject to the following terms and conditions:

1stpositionranking offers a forty five (45) day money back guarantee on shared web hosting and reseller packages if you cancel within the first forty five (45) days of the Initial Term, provided that such Money-back Guarantee Refund shall be due to you only upon your compliance with, and subject in all respects to, the terms and conditions of this Section 6.

1stpositionranking offers a fifteen (15) day money back guarantee on VPS Hosting if you cancel within the first fifteen (15) days of the Initial Term, provided that such Money-back Guarantee Refund shall be due to you only upon your compliance with, and subject in all respects to, the terms and conditions of this Section 6.

Requests for a Money-back Guarantee Refund must be submitted in writing to our Support Team ([email protected]) (the “Refund Request”) within sixty (60) days of your termination or cancellation of the account (the “Notice Period”). Money-back Guarantee Refunds will not accrue, and shall not be paid under any circumstances, if you do not provide the applicable Refund Request within the Notice Period. Money-back Guarantee Refunds only apply to hosting services.

No refunds are provided for domain registration fees, setup fees, support fees or any fees for additional Services, including without limitation, secure socket layer (SSL) certificates, custom packages, domain transfers, domain renewals, add on products or services, dedicated IP addresses, advanced support fees, or software licenses. No refunds are provided on dedicated server packages, all such purchases are final.

Only first-time accounts are eligible for the Money Back Guarantee Refund. For example, if you previously had or still have an account with 1stpositionranking and you canceled and signed up again for a new account, you will not be eligible for a refund. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement. The following methods of payment are not refundable under any circumstances: bank wire transfers, Western Union payments, checks, and money orders. If you pay with any of these methods, you will receive a credit to your account for current or future Services.

Refunds will be issued only to the payment method used for the purchase, and may take up to one (1) week to process.

1stpositionranking will not process new orders or provide additional Services to customers who have an outstanding balance with 1stpositionranking .

Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. 1stpositionranking is not responsible for any change in exchange rates between the time of payment and the time of refund.

If you believe there is an error in 1stpositionranking billing, you must contact 1stpositionranking about it, in writing ([email protected]), within thirty (30) days of the date you are billed or charged. 1stpositionranking’s obligation to consider your claim is contingent on you providing 1stpositionranking with sufficient facts to investigate your claim. If 1stpositionranking determines that your claim is valid, 1stpositionranking agrees to credit your account on your next billing date. You waive your right to dispute any charges or fees if you fail to notify 1stpositionranking in writing within thirty (30) days. This provision does not apply to third party fees, which are final.

7. Chargebacks, Reversals, and Retrievals

If you have a billing issue, please contact 1stpositionranking to address and resolve the issue. If 1stpositionranking receives a chargeback or payment dispute from a credit card company or bank, your Services may be suspended without notice. A fifty dollar ($50) reinstatement fee plus any outstanding balances accrued as a result of the chargeback(s), must be paid in full before Services will be restored.

8. Termination of Services

You may terminate the Services by submitting a cancellation request in writing by logging into 1stpositionranking account center located at https://customers.1stpositionranking.com. In the event that you are unable to log in to your account with 1stpositionranking , please contact our billing department via email, telephone or chat and we will assist you.

Cancellations must be requested via the form indicated above at least forty-eight (48) hours or more prior to the Service’s renewal date. If a cancellation notice is not received within the required time frame, you will be billed for the next billing term and are responsible for payment as set forth above.

1stpositionranking may terminate this Agreement at any time without notice. Should 1stpositionranking terminate this Agreement for any reason other than a breach of this Agreement or a violation of the Acceptable Use Policy, all prepaid fees will be refunded.

9. Refusal of Service

1stpositionranking reserves the right to refuse Services to anyone at any time. Any material that, in 1stpositionranking judgment, is obscene, threatening, illegal, or violates this Agreement in any manner may be removed from 1stpositionranking servers (or otherwise disabled), with or without notice.

Any manner of communication with 1stpositionranking staff that is belligerent, vulgar (curse words), highly rude, threatening, or abusive, as determined in 1stpositionranking sole discretion, may result in suspension or termination of your account without any refund.

1stpositionranking happily accepts orders from outside the United States, but may limit accounts from certain countries with a high fraud rate. To help protect 1stpositionranking and its customers from fraud, 1stpositionranking may ask you to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If you fail to satisfy these requests, the order may be denied.

10. Prohibited Persons (Countries, Regions, Entities, and Individuals)

Certain entities and individuals are prohibited from registering for and using the Services pursuant to export control laws and trade and economic sanctions imposed by the U.S. or other governments, as applicable. The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries or regions (each a “Sanctioned Country/Region”) and certain individuals, organizations or entities, listed by OFAC as associated with “Specially Designated Nationals” (“SDN”).

By using the Services you represent and warrant that you are not located in a Sanctioned Country/Region or listed as an SDN. Unless otherwise provided with express wrote permission, 1stpositionranking does not register and prohibits the use of any Services in connection with any Country-Code Top Level Domain Name (“ccTLD”) for any Sanctioned Country/Region.

11. Resource Usage

You are required to utilize server resources in a responsible manner. Server CPU, Memory and Disk space are resources shared by all 1stpositionranking customers. Excessive use of server CPU and memory resources by a customer can interfere with or prevent normal service performance for other customers.

1stpositionranking reserves the right to suspend or terminate Services on any account that, in its sole discretion, is abusing server resources or is in violation of 1stpositionranking’s Acceptable Use Policy. Such suspension or termination can occur at any time without prior notice.

Without limitation to the foregoing provisions, each customer’s usage shall not exceed:

10% CPU Usage

5% Memory Usage or 512 MB Memory

50 Running Processes

15 Minute Max Execution Time

150,000 Total Inodes

500 outgoing email messages per 60 minute period (all excess messages will be discarded and not delivered)

Shared & Reseller hosting space may only be used for web files, active email and content of User Content (as defined below). Shared & Reseller hosting space may not be used for storage (whether of media, emails, or other data), including, as offsite storage of electronic files, email or FTP hosts. 1stpositionranking expressly reserves the right to review every shared account for excessive usage that may be caused by a violation of this Agreement.

12. Bandwidth Usage

1stpositionranking allows you to upload, publish, display and distribute information, text, photos, videos and other content on or through the Services (referred to as “User Content”). User Content includes any content posted by you and users of any of your websites created or hosted through the Services. You are solely responsible for any and all User Content and any transactions or other activities conducted on or through your websites. By posting or distributing User Content on or through the Services, you represent and warrant to 1stpositionranking that (a) you have all necessary rights to post or distribute such User Content, and (b) your posting or distribution of such User Content does not infringe or violate the rights of any third party.

You acknowledge and agree that 1stpositionranking may, but is not obligated to, monitor User Content for any violations of this Agreement and may immediately take any corrective action in 1stpositionranking’s sole discretion, including without limitation, removal of all or a portion of the User Content, and terminating any and all Services without a refund of any pre-paid fees. You hereby agree that 1stpositionranking shall have no liability due to any corrective action that 1stpositionranking may take, including without limitation, suspension or termination of the Services.

14. Licenses

1stpositionranking grants you a non-exclusive, non-transferable, worldwide, license to use technology provided by 1stpositionranking solely to access and use the Services during the Term. Except for the rights explicitly granted herein, this license does not grant any additional rights to you. All right, title and interest in 1stpositionranking’s technology shall remain with 1stpositionranking, or its licensors. You are not permitted to circumvent any devices designed to protect 1stpositionranking, or its licensor’s ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.

Solely for the purpose of providing the Services, you grant 1stpositionranking, or any third parties used by 1stpositionranking to provide the Services, 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, your end users, including without limitation User Content. This license terminates on the expiration or termination of the Term, unless earlier terminated as provided herein. All right, title and interest in your technology shall remain with you, or your licensors.

15. Service Modifications

1stpositionranking reserves the right to modify, change or discontinue any aspect of the Services at any time. However, 1stpositionranking will provide you with advance notice of any material changes to the Services so you have an opportunity to cancel if you do not agree with any such changes. 1stpositionranking is not responsible for any damages or loss of data resulting from such action.

16. Uptime Guarantee

1stpositionranking guarantees that your shared server will be accessible 99.9% of the time in any given calendar month. This guarantee does not apply to unmanaged virtual private servers (“VPS”) or unmanaged dedicated server plans. The uptime of the server is defined as the reported uptime from the operating system and the web server which may differ from the uptime reported by other individual services. If 1stpositionranking fails to meet its uptime guarantee, you may request a credit equivalent to one (1) day of service per forty five (45) minutes of downtime. The first forty five (45) minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of Services.

Credits are only available for future Services and cannot be issued as refunds. All credit requests must be sent via email to 1stpositionranking,s billing department no later than the tenth (10th) day of the month following the event giving rise to such request. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame will not be approved. For example, if you experienced less than 99.9% uptime in the month of November, you would need to submit your request for credit no later than December 10th.

The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attacks, hardware failure, third-party software failure, Customer maxing its resource container, issues resulting from errors or omissions by the Customer, issues relating to the Customer’s ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are issued at the discretion of 1stpositionranking, based on its investigation of any issue that is covered by this section.

If 1stpositionranking provides a service level agreement for a particular Service, a credit shall be your sole and exclusive remedy for defects in, or issues with, such Service.

17. Support Policy

1stpositionranking provides support via email, phone and tickets for the purpose of assisting with basic questions regarding the Services.

18. Resellers

Resellers are responsible for supporting their own customers. 1stpositionranking does not provide support to its resellers’ customers. If a reseller’s customer contacts 1stpositionranking, 1stpositionranking will direct the customer to the reseller. All support requests must be made by the reseller on its customer’s behalf. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their customers. 1stpositionranking will hold a reseller responsible for any of its customers’ actions that violate the law, the terms of this Agreement, or the Acceptable Use Policy.

19. Backup

Your use of the Services is at your own risk. 1stpositionranking is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all backup of User Content stored on 1stpositionranking’s servers including without limitation your website files.

20. IP Address Allocation

Any dedicated IP order, in addition to what is provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with the policies of American Registry for Internet Numbers (“ARIN”) or other applicable registry. 1stpositionranking reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.

21. Customer Obligations

You represent and warrant to 1stpositionranking that you: (i) will use the Services in compliance with all applicable laws, rules, and regulations, including without limitation, with respect to your websites and any User Content; and (ii) you are solely responsible for all activities conducted on or through any website on your account, including any transactions or interactions with end users of your website.

22. Disclaimer

You acknowledge and agree that any use of the Services, including any information or content obtained through the Services, is at your own risk. 1stpositionranking disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all interruptions to the Services caused by 1stpositionranking or our employees. You further acknowledge and agree that 1stpositionranking exercises no control over, and accepts no responsibility for, the content of the information passing through 1stpositionranking’s host computers, network hubs and points of presence or the Internet.

23. Limitation of Liability

IN NO EVENT WILL 1STPOSITIONRANKING OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, CUSTOMER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF 1STPOSITIONRANKING IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, 1stpositionranking’S LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO 1stpositionranking FOR THE SERVICES IN THE ONE (1) MONTH PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

24. Indemnification

You agree to indemnify, defend and hold harmless 1stpositionranking, its affiliates, and their respective officers, directors, employees and agents (collectively, the “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 attorneys’ 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 Services, (ii) any breach or violation by you of this Agreement; or (iii) any of your acts or omissions. The terms of this section shall survive any termination of this Agreement.

25. Governing Law and Disputes

This agreement shall be governed by the laws of the State of Illinois, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Illinois, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.

25. Governing Law and Disputes

26. Partial Invalidity

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions shall nevertheless remain in full force and effect.

27. Assignment

1stpositionranking may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. You may not assign or transfer this Agreement or any of your rights or obligations hereunder, without the prior written consent of 1stpositionranking. Any attempted assignment in violation of this section shall be null and void and of no force or effect whatsoever. This Agreement shall bind and inure to the benefit of the parties respective successors and permitted assigns.

28. Force Majeure

Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

29. Waiver

1stpositionranking reserves its right to take all legal steps available to enforce this Agreement. 1stpositionranking’s failure to exercise any right or remedy hereunder shall not operate as a present or future waiver of such provision or of 1stpositionranking’s rights to enforce such right or remedy in the future. No waiver of any provisions of this Agreement or any other agreement with 1stpositionranking shall be effective unless expressly stated in writing and signed by both parties.

30. No Agency

This Agreement 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.

31. Survival

All provisions that by their very nature are intended to survive the termination of this Agreement shall survive termination of this Agreement, including without limitation Sections 23 through 26, and 31.

32. HIPAA Disclaimer

1stpositionranking is not compliant with the requirements of the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Customers acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. 1stpositionranking does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with HIPAA. Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this Agreement, and grounds for immediate account termination. 1stpositionranking does not sign “Business Associate Agreements” and you agree that 1stpositionranking is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact customer support.

33. Payment Card Industry Security Standard Disclaimer.

1stpositionranking complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our Customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your website. 1stpositionranking does not monitor Customer websites for compliance and we are not able to verify whether a Customer website complies with the PCI Standard.

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