Terms of Service
This agreement (this “Agreement”) between Horan Data Services, LLC (“FTP Today”) and Customer governs provision of FTP Today’s Internet service (the “Service”). This Agreement is effective as of the moment Customer (a) indicates assent through the FTP Today Website or (b) establishes an account with FTP Today or uses the Service or any element thereof. FTP Today may revise this Agreement from time to time by posting a new version hereof on the FTP Today Website, and if Customer signed up for the Service under a previous version, such revised terms will become effective thirty (30) days after the Posted/Revised date listed above (“New Effective Date”). Continued use of the Service after the New Effective Date constitutes acceptance of such revisions to this Agreement.
1. The Service.
(a) The Service includes the features and restrictions set forth in the quotation or the service package purchased by Customer (the “Package”). Customer agrees to the following terms and conditions regarding the term and termination of this Agreement and regarding billing cycles for each of the following Packages (in addition to such other provisions as the Package may include):
(i) Monthly Prepaid Package:
Customer pays monthly by credit card. Customer is obligated to keep credit card details current.
Customer may terminate for convenience. Notice to terminate is required in writing via email or support ticket system. Until notice to terminate is received, the Month-to-Month Package automatically renews monthly.
The service will be terminated immediately upon receipt of notice, without refund or proration of the final month. Unless notice to terminate is received the same day of renewal or earlier, FTP Today is not obligated to refund any payments in the event of such termination, however FTP Today may, at its sole discretion, make a refund exception in the event the renewal date falls on a holiday or weekend.
(ii) Annually Prepaid Package:
Customer pre-pays annually by credit card or by check. If by credit card, Customer is obligated to keep a credit card on file and to keep credit card details current, whether customer is making invoice payments by credit card or by check. Customer may terminate for convenience. Notice to terminate is required in writing via email or support ticket system. Until notice to terminate is received, the Year-to-Year Package automatically renews annually. The service will be terminated immediately upon receipt of notice, without refund or proration of the final year. Unless notice to terminate is received the same day of renewal or earlier, FTP Today is not obligated to refund any payments in the event of such termination, however FTP Today may, at its sole discretion, make a refund exception in the event the renewal date falls on a holiday or weekend.
(b) Customer will retain records of the terms and conditions of its Package for future reference. FTP Today may change Package prices or add or delete Package features or restrictions at any time, and such changes will become effective immediately. In the event of any conflict between the terms of any Package and the terms of this Agreement, the terms of this Agreement will govern. In the event of any conflict between the terms of any Package and the terms of this Agreement, the terms of this Agreement will govern.
(c) In the event that Customer is dissatisfied with the Service, including without limitation any new feature or restriction, Customer’s sole remedy will be termination of this Agreement pursuant to the provisions of Subsection 1(a) above and Section 3 below.
2. Fees.
(a) Customer will pay FTP Today in advance for provision of the Service pursuant to the requirements of Customer’s Package. Customer is responsible for monitoring storage utilization and any other metered services.
(b) Invoices are issued by e-mail and online as a courtesy; Customer will maintain awareness of its usage levels and the fees it owes FTP Today and will pay them when due. All invoices are due upon their date of issuance and will be considered overdue if not paid by the package renewal date. If Customer pays by a method other than credit card, Customer must have all payments submitted on or before their package renewal date. Any payment for invoices on terms other than credit card shall be charged to the credit card on file at FTP Today’s sole discretion, should invoice remain unpaid for more than 60 days. Any payment not paid when due will, at FTP Today’s option, bear interest at a rate of fifteen percent (15%) per year from the date due until paid. In addition to interest payments, FTP Today may charge a late fee of $24.99 per month, starting on the first day after any payment is due. Such late fees are intended to defray FTP Today’s costs resulting from late payments and will constitute liquidated damages. The parties agree that such liquidated damages are reasonable in light of the harm delay will cause and the difficulties of proof of loss and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. None of the remedies listed in this subsection is exclusive of other remedies.
(c) Customer will keep a valid credit card on file with FTP Today and a valid e-mail address to which all billing correspondence and receipts will be automatically sent. Customer will update credit card information as necessary (and may do so in the FTP Today customer billing portal). If paying by credit card, Customer will be charged on the account renewal date, and FTP Today may interrupt Service if a charge attempt is denied. If a charge attempt is denied, FTP Today may levy a $9.99 declined credit card fee for each unsuccessful attempt. Customer hereby authorizes FTP Today to retry said credit card as often as it deems necessary while the account is past due. Customers on terms other than credit card must keep a credit card on file to be used for past due payments at FTP Today’s discretion.
(d) Failure to pay an invoice, a declined credit card charge or a returned check does not constitute a cancellation notice. This agreement shall remain in force until the account is properly terminated within the terms of section (3) of this agreement. Should there be past due amounts at the time of proper termination, said amountsshall remain due FTP Today under the terms of this agreement.
(e) Customer will pay a $24.99 fee (i) for bank transfers under $500 and (ii) for custom billing requests. A Returned check will constitute a material breach of this Agreement, and Customer will incur a $50.00 returned check charge, in addition to any other remedies available to FTP Today.
(f) FTP Today is not required to issue refunds or credits except as explicitly specified in this Agreement.
3. Term & Termination.
(a) This Agreement will continue until terminated by either party pursuant to the procedures set forth herein. Request for termination is required via the online Support Ticket System or via email to cancel @ ftptoday.com. Should request for termination come by phone, a ticket will be opened by Support staff and the customer will still be required to respond by email before such request will be honored. Requests for cancellation must come from customer contacts registered as authorized on the billing account.
(b) In the event of any breach of this Agreement, including without limitation any breach of the provisions of Section 4 (Acceptable Use) or of the payment obligations set forth in Section 2, FTP Today may terminate the Services, any portion thereof, or this Agreement, immediately and without advanced notice. FTP Today is not required to return any data or personal property to Customer after such termination, nor to refund any fees paid or prepaid.
4. Acceptable Use.
(a) Customer asserts that it has read FTP Today’s Acceptable Use Policy (“AUP”). Customer will adhere to the AUP and will not allow the Services or FTP Today equipment to be used for activities prohibited by such policies. FTP Today may revise the AUP from time to time by posting a new version thereof on the FTP Today Website, and Customer is responsible for awareness of such revisions. In the event of any conflict between the AUP and this Agreement, this Agreement will govern.
(b) Without limiting the generality of the foregoing, in its use of the Service or the FTP Today equipment, Customer will not: (i) perpetrate any penetration test, security breach, network attack, act of hacking, or distribution of any virus, worm, or other harmful code; (ii) perpetrate any fraud, intellectual property infringement, or act of child pornography; (iii) disseminate or post any material or information that is or may be threatening, libelous, obscene, harassing, or offensive; (iv) threaten or harass any FTP Today employee, agent, or representative by telephone, in person, or through any other means of communication; (v) perpetrate any crime or other illegal activity; (vi) tamper with other FTP Today accounts, commit unauthorized intrusion into any part of FTP Today’s system, or access any FTP Today system not included in Customer’s package; (vii) scan FTP Today’s or any other network; (viii) use the Service for password cracking, for defrauding others into releasing passwords, for denial-of-service attacks (including without limitation the sending of packets with an unauthorized packet size), for UDP flooding, for ping-flooding, for half-open TCP connection flooding, or for any other unauthorized intrusion on a third party service or system, whether or not the intrusion results in loss or corruption of data; (xii) use programs, scripts, or commands or send messages with the intent to interfere with a user’s terminal session; or (ix) use the Services or the network to collect replies of messages sent from another provider which violate the rules of this Agreement or those of the originating provider. Customer will not permit any third party to use the Service or FTP Today equipment for any of the activities prohibited by this subsection.
(c) Customer will reimburse FTP Today for any expenses it incurs as a result of violation of the AUP or of the terms of this Section 4. In the event that FTP Today investigates any such suspected violation as a result of third party requests or demands from government or law enforcement agencies, Customer will pay FTP Today an investigation fee, even if such investigation determines that no violation took place. In the event that FTP Today investigates on its own initiative and discovers conduct it reasonably considers a violation, Customer will pay FTP Today an investigation fee. Investigation fees include a charge of $99.00 per person-hour for FTP Today staff and reimbursement for any costs of outside attorneys. FTP Today may require payment of such fees by wire transfer.
(d) Customer is responsible for preventing AUP violations and other violations of the terms of this Section 4 and this Agreement by third parties. Third party violations of the provisions of this Section will be considered violations by Customer.
(e) FTP Today has no obligation to monitor the Services but may do so and may disclose information regarding use of the Services for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; or to protect itself and its customers. FTP Today may grant law enforcement agencies access to its equipment to monitor Customer’s use of the Service.
5. Ownership of Data, Software, Hardware, and IP Addresses.
All software, hardware and Internet protocol (“IP”) addresses provided by FTP Today are licensed to Customer and remain FTP Today’s sole and exclusive property.
6. Maintenance, Security, & Service Interruption.
(a) FTP Today may interrupt Service to perform maintenance. FTP Today will exercise reasonable efforts (i) to inform Customer before interrupting Service and (ii) to repair the system promptly.
(b) Routine maintenance may from time to time be necessary in order for FTP Today to balance the loads on its servers. Said routine maintenance my require moving the customer’s FTP site to another FTP server, which may take the FTP site offline for a few minutes. In this event, if no one is currently connected to customer’s FTP site, nor has anyone connected in the most recent 15-minute period, FTP Today shall use its own discretion to move customer’s FTP site with a brief interruption.
(c) Customer is responsible for maintaining disaster recovery systems and for maintaining backups. FTP Today is not responsible for providing physical access to or copies of the software, data, or content stored on the system under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s account or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access not resulting from FTP Today’s fault. FTP Today will not be liable for loss of data or for breaches in system integrity, even if Customer’s Package includes firewalls, backups, denial of service protections, or other mechanisms to protect data and system integrity. In the event that FTP Today suspects that security of any of its equipment has been breached, it may disable such equipment and the Service.
(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, FTP Today may immediately and without notice terminate this Agreement, suspend Service, or remove Customer’s material or information from FTP Today’s equipment, in whole or in part, in the event of a violation or suspected violation of the terms of Section 4 (Acceptable Use), including without limitation in the event that FTP Today receives a notice or claim that Customer’s use of the Service infringes or violates third party rights. FTP Today may require that Customer pay the investigation fees referred to in Section 4(c) before FTP Today provides additional Service to Customer after such suspension or removal of materials and may require that customer prepay investigation fees, additional attorneys’ fees, or other costs likely to be incurred as a result of provision of continued Service.
(e) In the event that Customer’s use of the Service causes a denial of service or in any other way injures the functioning of services FTP Today provides to other customers, FTP Today may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Customer’s.
(f) FTP Today will not be liable for service interruptions, including without limitation interruptions executed in order to investigate suspected violations of Section 4 (Acceptable Use), whether or not such violations occurred.
(g) Customer will promptly report any Service failures to FTP Today via the online ticketing system found in the FTP Today customer support portal. Customer recognizes that any expenses it incurs for System diagnosis or repair, including without limitation expenses for outside consultants, are non-refundable unless approved in writing for refund in advance by FTP Today.
7. Privacy Policy.
(a) Customer asserts that it has read FTP Today’s Privacy Policy. FTP Today may revise the Privacy Policy from time to time by posting a new version thereof on the FTP Today Website, and Customer is responsible for awareness of such revisions. In the event of any conflict between the Privacy Policy and this Agreement, this Agreement will govern.
8. Disclaimers and Warranties.
(a) THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FTP TODAY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FTP TODAY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE PROVIDED BY FTP TODAY OR ANY OF ITS REPRESENTATIVES WILL CREATE A WARRANTY.
(b) FTP TODAY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF FTP TODAY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. FTP TODAY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES BILLED TO CUSTOMER DURING ONE BILLING CYCLE (MONTH OR YEAR, DEPENDING ON THE PACKAGE) PRECEDING THE CLAIM.
(c) FTP TODAY WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: (i) OTHER FTP TODAY CUSTOMERS OR THIRD PARTIES ACCESSING CUSTOMER’S DATA OR ASSIGNED COMPUTERS; (ii) SECURITY BREACHES; (iii) EAVESDROPPING; (iv) DENIAL OF SERVICE ATTACKS; (v) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE EQUIPMENT OR SERVICE; (vi) CUSTOMER’S RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICE; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE EQUIPMENT OR SERVICE; (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE; OR (ix) LOSS OF DATA OR LOSS OF ACCESS TO DATA.
(d) FTP TODAY ‘S LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION AND IN THIS AGREEMENT APPLY EQUALLY TO FTP TODAY ‘S OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, REPRESENTATIVES, SUPPLIERS, SUBSIDIARIES, PARENTS, AND AFFILIATED COMPANIES.
9. Third Party Claims & Indemnity.
(a) Promptly after FTP Today’s request, Customer will notify any third party, in writing, that FTP Today is not responsible for (i) any content or materials posted on any Customer FTP site or otherwise disseminated through Customer’s use of the Service or (ii) any use or abuse of the Service whatsoever by Customer or any third party.
(b) Customer will defend and indemnify FTP Today (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation alleged infringement of third party intellectual property or privacy rights; (ii) Customer’s use, misuse, or failure to use the Service; and (iii) any action taken by FTP Today as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.
10. Miscellaneous.
(a) This Agreement is to be construed in accordance with and governed by the internal laws of the State of Ohio without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of Ohio to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of Cincinnati, Ohio.
(b) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy.
(c) If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby.
(d) This Agreement, with any other instrument or document referenced herein, which are incorporated by this reference as though set forth in full, embodies the final, full, and exclusive statement of the agreement between the parties, and as of its date supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to the subject-matter hereof.
(e) All written communications to Customer will be deemed delivered if sent to the contact information provided to FTP Today at the time of order, unless Customer provides some alternate contact information in writing. All written communications to FTP Today and all fees will be mailed to:
Horan Data Services, LLC
d.b.a. FTP Today
11711 Princeton Pike
Suite 341-309
Cincinnati OH 45246-2534
unless FTP Today posts alternate contact information at its Website.