CUSTOMER TERMS OF USE
March 19, 2026 (Revised)
This Subscription License Agreement (“Agreement”) sets forth the terms and conditions upon which Tempesta Media, LLC (“Tempesta”) grants you (“Customer”) the Subscription License to use the Tempesta Platform, Content and Services, as more particularly described herein. This Agreement will be subject to one or more written and separate quotes, proposals, sales orders, service orders, purchase orders, etc. (collectively, “Order”) as provided by Tempesta to Customer, which Orders are incorporated herein by reference. To the extent that such Order contains legal and/or pricing terms that differ from this Agreement, such terms of the Order shall prevail. The parties agree to the following terms:
Definitions
“Content” means custom-written content generated for Customer by Tempesta’s writing staff and delivered through the Tempesta Platform.
“Claims” means any third-party lawsuit, claim, action or demand.
“Credits” means the credits included within Customer’s Subscription License, which can be applied to obtain Content.
“Customer Content” means any content provided by Customer through the Tempesta Platform for potential or actual incorporation into the Content, including without limitation background research, whitepapers, marketing materials, competitive information, as well as Customer’s own images, edits and additional content that are added by Customer prior to publication of the Content.
“Law” means any applicable law, rule, statute, decree, decision, order, regulation, judgment, code, and requirement of any government authority (federal, state, local, or international) having jurisdiction.
“Professional Services” means the creation and editing of Content by Tempesta pursuant to an Order or as requested through the Tempesta Platform, as well as the management of a Customer’s website or blog.
“Services” when used within this Agreement shall refer collectively to access to the Tempesta Platform, Managed Service Hosting and Professional Services.
“Subscription Fees” mean the fees for the Subscription License to use the Tempesta Platform, as more specifically set forth in a Customer’s Order.
“Subscription License” means the worldwide, non-exclusive, non-transferable, non-perpetual, non-sublicense-able license granted to Customer under this Agreement to use subscription services, services and technologies provided on the Tempesta Platform.
“Subscription Term” means the duration of Customer’s Subscription License to use the Tempesta Platform, as more specifically set forth in a Customer’s Order.
“Tempesta Platform” means the proprietary software, applications and processes developed and employed by Tempesta to provide Customer with the Content.
Subscription Term and Fees
Customer acknowledges that the Subscription Term and corresponding Subscription Fees for access to the Tempesta Platform, Professional Services and Content will be specified within the Order under which such Content is acquired by Customer.
Automatic Renewal
Customer understands and agrees that unless Customer provides at least thirty (30) days written notice prior to the end of the current Subscription Term of its intent to not renew, the subscription will automatically renew for the same Subscription Term. Customer acknowledges that failure to provide such notice will subject Customer to responsibility of payment in full of Customer Fees for the new Subscription Term.
Credits
A Subscription may include an allocation of Credits to be used for various products and services available within the Tempesta Platform. It is the Customer’s obligation to use such Credits during the Subscription Term in which they are purchased. There are no refunds provided for purchased, but unused credits. Credits included within a Subscription that are unused expire at the earlier of the Subscription termination or at the end of each Subscription Term.
One-Time Credits
Customer may purchase One-Time Credits, on an a la carte basis, as they require. Unused One-Time Credits expire the earlier of one year from the date of purchase or upon expiration of the existing Subscription Term.
Price Increases
Tempesta reserves the right to increase the price of Customer Subscription Fees or other fees by up to twenty percent (20%) upon the next Subscription Term of the Customer, upon not less than fifteen (15) days prior written notice. In instances where the price increase is twenty percent (20%) or more, Tempesta will provide at least thirty (30) days written notice to Customer. During this notice period, Licensee may terminate this Agreement with no additional obligation if they do not wish to pay such increased Subscription Fees.
Credit Checks
Customer acknowledges that timely payment is necessary in order for Tempesta to provide Content to Customer. As such, Customer authorizes and consents to a reasonable credit check to be performed by Tempesta or a professional third party as selected by Tempesta for rendering such services.
Payment Terms and Taxes
Customer agrees to the following with regard to Payment Terms for the Content:
Terms and Method of Payment – Customer shall pay Subscription Fees for its use of the Content according to the terms of the applicable Order. Customer shall pay all Subscription Fees by credit card or bank ACH, unless individual payments exceed $5,000. In the event an individual payment exceeds $5,000, Customer may also pay by domestic bank wire transfer or domestic check. If payment is made by check, Customers should allow up to ten (10) days for payment to clear and Content Credits to be added to their account.
Pre-Payment – All Subscriptions require pre-payment at or before the beginning of each Subscription Term, so specified in the applicable Order.
Billing Cycle and Overages – Subscription Fees are billed up to thirty (30) days prior to the Subscription Term’s renewal. One-Time Content Usage Credits are prepaid by the Customer before being released for usage. Any overage charges from Customer’s consumption of Content are billed in the following month.
Disputes – Customer may dispute Subscription Fees within ten (10) days of their due date by submitting a written dispute to Tempesta at CustomerSupport@TempestaMedia.com. Customer waives any further claim of dispute for Subscription Fees unless this process is followed. Further, Customer waives any and all claims regarding Subscription Fees paid. If Customer uses a credit card for payment of Subscription Fees, Customer expressly agrees not to submit a credit card chargeback through their credit card provider with respect to any dispute; any and all disputes shall be resolved in accordance with this Agreement. Initiating a credit card chargeback shall be a violation of this Agreement and Customer’s Subscription License and access to the Tempesta Platform and any Content may be immediately suspended or terminated without prior notice. Customer shall not withhold payment of the disputed charges and shall remain liable for all Subscription Fees until the parties resolve the dispute. If the parties cannot reach resolution, the dispute shall be resolved by arbitration according to the terms of this Agreement. Once a dispute is resolved and if obligated to do so as part of an Arbitration Settlement, Tempesta will provide a refund to Customer in the agreed amount. Acceptance of such refund by Customer constitutes full satisfaction of the dispute and Customer waives any further claims with regard to the dispute.
Payment Decline – If Customer’s payment method is rejected, Customer agrees to pay a late fee of $100 plus pro-rated interest of one point five percent (1.5%) on any outstanding balance.
Suspension for Lack of Payment – If Customer fails to pay Subscription Fees by their due date, Tempesta may suspend Customer’s access to the Content. Customer acknowledges that it remains liable for payment in full of Subscription Fees due, even if Customer’s access to the Content is suspended.
Termination for Lack of Payment – If Customer fails to pay Subscription Fees within sixty (60) days of their due date, Tempesta may assess an additional $100 late fee and reserves the right to terminate this Agreement. Customer acknowledges that it remains liable for payment in full of Subscription Fees due, late fees, accrued interest and all costs associated with collection, even if Customer’s access to the Content is terminated for non-payment.
Termination by Customer – If Customer cancels their Subscription, their account access will be suspended at the end of their current Subscription Term. If Customer wishes to reinstate their Subscription, they must do so within sixty (60) days of Cancellation. Failure to do so will result in deletion of the Customer’s Subscription Account.
Refunds – Except with respect to an obligation arising from an arbitrated dispute, Tempesta does not provide refunds for any One-Time Credits, Subscriptions or other purchases made by the Customer.
Taxes – Customer acknowledges that it is solely responsible for the payment of any taxes imposed by local, state, or federal governments in Customer’s acquisition and use of the Content. Tempesta will collect such taxes if required by law.
Customer’s Responsibilities
Customer agrees to the following with regards to Customer’s responsibilities in using the Content and the Tempesta Platform, of which the violation of any is grounds for suspension of delivery of Content or termination of this Agreement, at Tempesta’s sole discretion:
Unauthorized Use – Customer shall use commercially reasonable efforts to prevent unauthorized, unlicensed access to or use of the Tempesta Platform and any other technology and services used to deliver Content under this Agreement.
Reverse Engineering – Customer shall not reverse engineer or otherwise attempt to gain unauthorized access to any portion of the Tempesta Platform or other technology used to deliver Content under this Agreement.
Interference – Customer shall not interfere with Tempesta’s delivery of its Tempesta Platform, Services or Content to its other Customers.
Privacy Policy – Customer’s use of the Services is subject to Tempesta’s Privacy Policy posted on the Tempesta website and modified from time to time.
Legal Compliance – Customer shall use the Tempesta Platform and the Content in strict accordance with applicable Laws, including, but not limited to, employment laws, intellectual property laws, and laws governing contracts.
Tempesta’s Responsibilities
Plagiarism Screening – As part of its platform, all Content created by Tempesta’s contracted writers is screened for potential plagiarism using both third-party plagiarism technology and Tempesta’s proprietary technology. Screening is performed prior to delivery of Content to Customers for their review and acceptance. Content that fails screening is rejected and not sent to the Customer. Within five (5) days from the date of Content acceptance by the Customer, if the Content is found by either party to be partially or wholly plagiarized or cited without proper attribution, Tempesta agrees to re-write said Content solely at its own expense for the Customer.
Distribution Format – Tempesta will supply Content in rich-text format (RTF files) and HTML format (HTML files) through electronic download or delivery from the Tempesta Platform unless otherwise requested by Customer.
Reasonable Efforts – Tempesta will use commercially reasonable efforts to make sure that the Tempesta Platform used to deliver the Content is reasonably available, except for (a) planned downtimes for system maintenance, which we will try to schedule during non-peak hours AND (b) any unavailability caused by circumstances beyond Tempesta’s reasonable control, including but not limited to, acts of God or government; natural disasters such as flood, fire, earthquakes; civil unrest or terrorism; labor problems such as strikes; or Internet communication issues such as service provider failures or delays.
Support – Tempesta will provide support to paid subscription customers. The type and level of support provided will vary depending on the Subscription purchased.
Data Security – Tempesta shall implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, disclosure, alteration or destruction, consistent with industry standards. Except as expressly set forth in this Agreement, Tempesta makes no additional warranties regarding data security, compliance with laws, or protection from cyber threats.
MASTER LIMITATION OF LIABILITY, WARRANTY DISCLAIMER & RISK ALLOCATION
DISCLAIMER OF WARRANTIES
THE SERVICES, TEMPESTA PLATFORM, CONTENT, MANAGED HOSTING SERVICES, PROFESSIONAL SERVICES, AND ALL RELATED TECHNOLOGIES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS.
TO THE MAXIMUM EXTENT PERMITTED BY INDIANA LAW, TEMPESTA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO:
- IMPLIED WARRANTIES OF MERCHANTABILITY
- FITNESS FOR A PARTICULAR PURPOSE
- TITLE
- NON-INFRINGEMENT
- QUIET ENJOYMENT
- ACCURACY OR COMPLETENESS
- SYSTEM INTEGRATION
- DATA SECURITY
- ERROR-FREE OPERATION
- UNINTERRUPTED ACCESS
TEMPESTA DOES NOT WARRANT THAT:
- THE SERVICES WILL MEET CUSTOMER’S BUSINESS OBJECTIVES
- CONTENT WILL PRODUCE MARKETING RESULTS
- HOSTING WILL BE UNINTERRUPTED OR SECURE
- SYSTEMS WILL BE FREE FROM VIRUSES OR CYBERATTACK
- DATA WILL NOT BE LOST OR CORRUPTED
- SERVICES WILL ENSURE REGULATORY COMPLIANCE
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
ASSUMPTION OF RISK
CUSTOMER EXPRESSLY ASSUMES ALL RISKS ASSOCIATED WITH:
- PUBLICATION OR USE OF CONTENT
- OPERATION OF A WEBSITE
- DIGITAL MARKETING PERFORMANCE
- HOSTING ENVIRONMENT OPERATION
- THIRD-PARTY SOFTWARE OR PLUGINS
- CYBERSECURITY EVENTS
- REGULATORY COMPLIANCE
- DATA PROCESSING AND STORAGE
CUSTOMER FURTHER ACKNOWLEDGES THAT INTERNET-BASED SERVICES ARE INHERENTLY SUBJECT TO INTERRUPTION, SECURITY RISKS, AND THIRD-PARTY DEPENDENCIES.
EXCLUSION OF DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPESTA SHALL NOT BE LIABLE FOR ANY:
- INDIRECT DAMAGES
- INCIDENTAL DAMAGES
- CONSEQUENTIAL DAMAGES
- SPECIAL DAMAGES
- EXEMPLARY DAMAGES
- PUNITIVE DAMAGES
- LOST PROFITS
- LOST REVENUE
- LOSS OF GOODWILL
- LOSS OF DATA
- BUSINESS INTERRUPTION
- LOSS OF BUSINESS OPPORTUNITY
- REGULATORY FINES OR PENALTIES
- COST OF SUBSTITUTE SERVICES
WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR OTHERWISE — EVEN IF TEMPESTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AGGREGATE LIABILITY CAP
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPESTA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO TEMPESTA DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
IF THE CLAIM RELATES SPECIFICALLY TO MANAGED HOSTING SERVICES, LIABILITY SHALL NOT EXCEED THE AMOUNT PAID FOR MANAGED HOSTING SERVICES DURING THE THREE (3) MONTHS PRECEDING THE CLAIM.
THIS CAP APPLIES REGARDLESS OF THE THEORY OF LIABILITY AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NO LIABILITY FOR REGULATORY OR COMPLIANCE EXPOSURE
TEMPESTA DOES NOT WARRANT OR GUARANTEE COMPLIANCE WITH:
- HIPAA
- HITECH
- GDPR
- CCPA
- PCI-DSS
- ADA
- FTC REGULATIONS
- SEC REQUIREMENTS
- FINANCIAL SERVICES REGULATIONS
- INDUSTRY-SPECIFIC DATA PROTECTION LAWS
CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER SERVICES MEET ITS LEGAL OR REGULATORY REQUIREMENTS.
TEMPESTA SHALL NOT BE LIABLE FOR ANY REGULATORY INVESTIGATION, FINE, PENALTY, AUDIT DEFICIENCY, OR ENFORCEMENT ACTION.
ADDITIONAL PROVISIONS APPLICABLE TO MANAGED HOSTING SERVICES
NO SERVICE LEVEL GUARANTEE
Managed Hosting Services are provided on a commercially reasonable efforts basis only. No uptime guarantee or SLA applies unless separately executed in writing.
Downtime, latency, outages, or performance degradation do not constitute breach.
THIRD-PARTY INFRASTRUCTURE ALLOCATION
Managed Hosting relies on third-party providers. Tempesta is not responsible for:
- Cloud provider outages
- DNS failures
- Registrar issues
- CDN failures
- Plugin vulnerabilities
- API disruptions
- Payment processor outages
- Hosting environment incompatibilities
Customer assumes all risk associated with third-party technology dependencies.
CYBERSECURITY AND DATA BREACH LIMITATION
No hosting system is immune from cyberattack. Tempesta does not guarantee immunity from:
- Ransomware
- Malware
- DDoS attacks
- Zero-day exploits
- Unauthorized access
- Credential compromise
Tempesta shall not be liable for:
- Data breach damages
- Notification costs
- Credit monitoring expenses
- Forensic investigation costs
- Business interruption
- Regulatory fines
- Class action exposure
Customer is solely responsible for maintaining appropriate cybersecurity insurance.
BACKUP DISCLAIMER
Backups are provided as a courtesy only. Tempesta does not guarantee:
- Completeness
- Accuracy
- Recoverability
- Restoration success
Customer must maintain independent backups. Tempesta is not liable for data loss under any circumstance.
CUSTOMER MODIFICATIONS AND SECURITY PATCHES
Tempesta is not responsible for vulnerabilities or failures caused by:
- Customer-installed plugins
- Customer code changes
- Third-party developer changes
- Shared credentials
- Customer refusal to implement recommended updates
If Customer declines recommended security measures, Customer assumes all resulting risk.
ENTERPRISE RISK ACKNOWLEDGMENT
Customer acknowledges that if it operates in a regulated industry, processes sensitive personal information, financial data, or protected health information, it does so at its own risk unless a separate written enterprise agreement is executed.
Tempesta’s pricing does not include enterprise-grade indemnification or regulatory liability assumption.
INDEMNIFICATION BY CUSTOMER
Customer shall indemnify, defend, and hold harmless Tempesta from any third-party claims arising from:
- Customer’s website content
- Regulatory non-compliance
- Data privacy violations
- Customer data handling practices
- Customer’s misuse of Services
- Claims arising from Customer’s industry-specific obligations
This obligation survives termination.
CLASS ACTION WAIVER
To the maximum extent permitted by law, Customer agrees that any dispute shall be brought solely in Customer’s individual capacity and not as part of any class, collective, consolidated, or representative proceeding.
ESSENTIAL BASIS OF THE BARGAIN
Customer acknowledges and agrees that:
- The limitations set forth herein are material terms.
- Pricing reflects this allocation of risk.
- Tempesta would not provide Services absent these limitations.
- These provisions are enforceable under Indiana law and shall survive termination.
Customer waives any argument that these provisions are unconscionable or fail of their essential purpose.
SHORTENED STATUTE OF LIMITATIONS
TO THE MAXIMUM EXTENT PERMITTED BY INDIANA LAW, ANY CLAIM, DEMAND, ARBITRATION, OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM FIRST AROSE OR IS DEEMED TO HAVE ARISEN.
ANY CLAIM NOT BROUGHT WITHIN SUCH ONE-YEAR PERIOD IS PERMANENTLY BARRED.
Customer expressly waives any longer statute of limitations otherwise available under Indiana law or any other jurisdiction.
This provision survives termination.
MASS ARBITRATION PROTECTION AND COST-SHIFTING
If twenty-five (25) or more similar arbitration demands are filed against Tempesta by or with the assistance of the same law firm or coordinated group of law firms (“Mass Filing”), the following shall apply:
- Batching Requirement – Claims shall be administered in sequential batches of no more than ten (10) arbitrations at a time.
- Fee Allocation – Filing fees and administrative costs shall be allocated in accordance with the applicable arbitration rules, except that Customer shall be responsible for its proportionate share of all mass filing administrative fees to the maximum extent permitted by law.
- Cost Shifting for Frivolous Claims – If the arbitrator determines a claim is frivolous, filed in bad faith, or primarily intended to coerce settlement leverage, Customer shall reimburse Tempesta for all arbitration fees, administrative costs, and reasonable attorneys’ fees incurred.
- Settlement Freeze – No global settlement discussions shall be required until the first batch of cases is resolved.
- Severability Preservation – If this Mass Arbitration provision is found unenforceable, the remainder of the arbitration agreement shall remain enforceable.
Customer acknowledges that this structure is intended to prevent abusive coordinated filings designed to impose disproportionate settlement pressure.
MANDATORY CYBER INSURANCE REQUIREMENT
If Customer:
- Collects personal data,
- Processes financial information,
- Processes health-related information,
- Operates in a regulated industry,
- Conducts e-commerce transactions, or
- Stores sensitive consumer information,
Customer represents and warrants that it maintains commercially reasonable cyber liability insurance coverage sufficient to cover:
- Data breach response costs
- Regulatory investigations
- Consumer notification
- Third-party claims
- Business interruption
Tempesta shall have no liability for any cybersecurity-related loss that would reasonably be covered by such insurance.
Failure to maintain such insurance constitutes assumption of all related risk by Customer.
Tempesta may request proof of coverage upon reasonable notice.
LIQUIDATED DAMAGES – CHARGEBACKS, PAYMENT INTERFERENCE & WRONGFUL DISPUTES
Customer acknowledges that improper chargebacks, ACH reversals, or payment disputes cause substantial administrative expense, reputational harm, merchant processing penalties, and operational disruption to Tempesta.
Accordingly, if Customer initiates:
- A credit card chargeback
- An ACH reversal
- A payment processor dispute
- A merchant complaint
- Or any similar reversal attempt
In violation of this Agreement:
Customer shall owe liquidated damages in the amount of:
- $500 per occurrence, OR
- 25% of the disputed transaction amount, whichever is greater,
PLUS:
- All merchant processing penalties
- All administrative costs
- All attorneys’ fees
- All arbitration costs
- All collection costs
The parties agree this liquidated damages amount is a reasonable estimate of anticipated harm and is not a penalty.
Tempesta may immediately suspend Services upon initiation of any improper chargeback.
ENHANCED ANTI-CHARGEBACK ENFORCEMENT
Customer expressly agrees:
- Not to initiate any payment dispute without first complying with the Agreement’s dispute procedures.
- That initiating a chargeback in violation of this Agreement constitutes material breach.
- That Tempesta may report such conduct to merchant processors and credit agencies as permitted by law.
- That Customer waives any claim that Tempesta’s enforcement actions constitute defamation or improper reporting if made in good faith.
Customer remains fully liable for all Subscription Fees during any pending dispute.
NO CONSEQUENTIAL BUSINESS INTERRUPTION LIABILITY
Customer acknowledges that Tempesta’s pricing does not include assumption of enterprise operational risk.
Accordingly, Tempesta shall not be liable for:
- Website downtime losses
- Lost transactions
- SEO ranking changes
- Advertising campaign loss
- Lead generation interruption
- Contract losses
- Vendor penalties
- Investor losses
- Market capitalization impact
This exclusion applies even if such damages were foreseeable.
CUMULATIVE APPLICATION OF LIMITATIONS
All liability limitations in this Agreement:
- Apply cumulatively.
- Apply regardless of theory of recovery.
- Apply even if any limited remedy fails of its essential purpose.
- Survive termination or expiration.
No claim may be recast in tort, statute, negligence, or misrepresentation to avoid these contractual limitations.
MATERIAL INDUCEMENT
Customer acknowledges and agrees that:
- The limitations, waivers, disclaimers, caps, and risk allocations herein were a material inducement for Tempesta to enter into this Agreement.
- The Subscription Fees reflect this allocation of risk.
- Absent these provisions, the fees charged would be substantially higher.
Customer knowingly and voluntarily accepts this allocation of risk.
Termination / Expiration
The parties agree to the following with regards to termination/expiration of this Agreement:
Termination by Customer – Prior to Customer’s Subscription License renewal or within the period of notice for a Price Increase, Customer may terminate this Agreement with written notice to Tempesta at no further obligation or penalty effective as of the end of the current Subscription Term. Thereafter, Customer may terminate at any time, but Customer remains fully liable for payment of any Subscription Fees due through the end of the current Subscription Term.
Termination by Tempesta Due to Customer’s Breach – Customer understands and agrees that Tempesta may terminate this Agreement immediately without prior notice should Customer breach the terms of this Agreement. Customer shall remain liable for payment of all Subscription Fees until the end of the current Subscription Term.
Termination by Tempesta Due for Convenience – Customer understands and agrees that Tempesta may terminate this Agreement with five (5) days’ written notice to Customer. Customer shall remain liable for payment of all Subscription Fees up through the date of actual termination.
Effect of Termination/Expiration – Customer understands and agrees that once this Agreement ends, Customer will no longer be able to access the Content and/or further use the Content provided by Customer. It is the Customer’s obligation to download any Customer-owned Content prior to termination.
Effect of Termination – Managed Hosting Services – Upon termination or cancellation of Managed Hosting Services for any reason: (a) Hosting Access. Customer’s access to the hosted environment shall terminate on the effective date of cancellation unless otherwise agreed in writing. (b) Website Files. Upon written request and provided Customer’s account is paid in full, Tempesta will provide Customer with one (1) export of the website files and database in a standard format reasonably determined by Tempesta. (c) No Ongoing Support. Tempesta shall have no obligation to provide further updates, maintenance, support, security patches, monitoring, or compatibility services following termination. (d) Deletion of Data. Tempesta reserves the right to permanently delete website files, backups, and related data thirty (30) days after termination unless otherwise required by law. (e) License Termination. Any license to Tempesta automatically terminates upon termination of Services. Continued use of Tempesta Materials outside of an active service agreement is strictly prohibited.
Migration Assistance – If Customer requests assistance transferring the website to another hosting provider, such services shall be billed at Tempesta’s then-current hourly rate (currently $225.00 per hour), with a minimum migration fee of $1,000.00. Migration services are provided on a commercially reasonable efforts basis only. Tempesta does not guarantee compatibility with any third-party hosting environment and shall not be responsible for issues arising after migration. All migration fees must be paid in advance.
Post-Transfer Disclaimer – Once website files are delivered or migrated, Tempesta shall have no liability for performance, functionality, security, data loss, third-party conflicts, downtime, or regulatory compliance issues arising from Customer’s new hosting provider or subsequent modifications. Customer assumes all risk associated with operation of the website following termination.
Condition of Release – Tempesta shall have no obligation to release website files, perform migration services, or provide access credentials unless and until all outstanding invoices, fees, and charges are paid in full.
Backup and Data Retention Limits – Tempesta is not a data archiving service. Customer is solely responsible for maintaining independent backups of all website content. Tempesta shall not be liable for any loss of data following termination.
Non-Disclosure, Non-Solicitation, and Non-Disparagement
Non-Disclosure – Each party (a “disclosing party”) may, from time to time, disclose to the other (a “receiving party”) confidential information relating to its business and affairs, the Tempesta Platform, or the Services (collectively, “Confidential Information”). The receiving party shall (i) avoid disclosure of the other’s Confidential Information to any third party without the written consent of the disclosing party, except that Tempesta may provide the Confidential Information to independent contractors so long as such independent contractors agree to protect such Confidential Information substantially as set forth herein; (ii) not use the other’s Confidential Information except for provision of the Services; and (iii) use at least the same degree of care to protect the other’s Confidential Information as it uses with respect to its own Confidential Information and in no event less than a reasonable degree of care. Nothing shall prohibit Tempesta from using the general knowledge accrued in providing the Services for any purpose at Tempesta’s sole discretion. The following is not Confidential Information: (i) information in the public domain through no breach or fault of the receiving party; (ii) information already known to the receiving party prior to disclosure by the disclosing party; (iii) information received by the receiving party rightfully from a third party; (iv) information independently developed by the receiving party; or (v) information required to be disclosed by law.
Non-Solicitation – For a period of eighteen (18) months after the expiration or termination of this Agreement, Customer shall not hire, solicit, or induce or assist any third party in soliciting or inducing any employee or contractor of Tempesta that Customer learned about through the performance of this Agreement, to leave his or her employment with Tempesta. In the event Customer breaches its obligations, Customer shall pay Tempesta, as liquidated damages and not as a penalty, an amount equal to one hundred percent of such employee’s first-year salary with the Customer or third party (including bonuses and deferred income of any kind) within thirty (30) days of each such breach. For the purposes of determining “solicitation,” the advertisement of employment opportunities by Customer in any public forum (including magazines, trade journals, publicly accessible internet sites, classified advertisements, or job fairs open to the public) shall not be considered “solicitation,” and the hiring of an individual as a result of his or her response to such a general employment advertisement or in response to his or her unsolicited employment inquiry shall not constitute a breach of this Agreement or result in any liquidated damages.
Non-Disparagement – It is expressly agreed to by both parties to refrain from publicly or privately either directing any disparaging or defamatory remarks regarding either party or directly disparaging either party, including but not limited to the other party’s management, employees, consultants and Services provided hereunder. Both parties understand and agree that this restriction prohibits, among other things, the making of disparaging or defamatory remarks regarding either party or directly engaging in any conduct that disparages either party in any forum, including verbally, in writing, or through social media posts.
The parties agree that monetary damages may not be an adequate remedy for breach of the Non-Disclosure, Non-Solicitation, and Non-Disparagement terms of this Agreement and that an aggrieved party may, without limitation to other remedies available, apply to any competent court of law or equity for specific performance or injunctive relief to enforce these provisions (without first proceeding to arbitration) if the breaching party does not cease the prohibited activity with two (2) days following demand by the aggrieved party.
Publicity
Notwithstanding anything herein to the contrary, Customer grants Tempesta the right to display Customer’s logo and/or trade name in Tempesta’s advertising, including display on Tempesta’s website, signifying that Customer is a customer of Tempesta. Customer may opt out of being included in such publicity by sending written notice to CustomerSupport@TempestaMedia.com.
Communication and Notifications
You agree to receive account update, billing standing, customer support and appointment reminder from Tempesta via email and/or text message to the phone number provided. Message frequency is as needed and or requested by the Customer. Message and data rates may apply. For help, reply HELP or email us at CustomerSupport@tempestamedia.com. You can opt out at any time by replying STOP. Consent to contact via text message is not a condition to receive the Services.
Notices
Customer understands and agrees that Customer will receive all notices regarding this Agreement in written form, either by standard mail or email delivery.
No Other Relationship or Legal Interest
The parties agree that this Agreement does not create any other relationship or legal interest between Customer and Tempesta, including, but not limited to, any sales contract, license, title, partnership, or other legal right, except as specified by this Agreement.
Invalidity of Provision
The parties agree that even if a court invalidates a provision of this Agreement, the remaining Agreement provisions are still valid and remain in full effect.
Choice of Law
The parties agree that the laws of the State of Indiana, without regard to its conflict of law principles, are to be used with regards to any interactions with the Content as well as with Tempesta.
Arbitration of Disputes
The parties agree that if the parties cannot amicably resolve any legal dispute or damage claim that should arise from Customer’s interactions with the Content, Customer agrees to resolve any such dispute or damage claim by arbitration. The arbitration provisions shall apply to all disputes between the parties, including those arising out of or relating to the interpretation, enforceability, breach, termination, or validity of this Agreement. The arbitrator shall have exclusive authority to resolve all threshold arbitrability issues, including challenges to the existence, scope, or enforceability of this arbitration clause. The arbitration proceeding shall be conducted in Michigan City, Indiana, in accordance with the Commercial Arbitration rules of the American Arbitration Association, then in effect with one (1) arbitrator to be selected by mutual agreement of both Customer and Tempesta. If the parties cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Indiana shall apply to the arbitration proceedings. The prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred with respect to such dispute. The parties agree that the arbitrator cannot award punitive damages and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
Impossibility
The parties agree that to the extent either Customer or Tempesta cannot adhere to the terms of this Agreement due to circumstances outside either party’s control, such responsibility is excused until the circumstances preventing fulfillment of such responsibility are removed.
Force Majeure
Tempesta shall not be liable for delays or failures in performance resulting from acts beyond such party’s reasonable control, including but not limited to acts of government, acts of war, acts of terrorism, acts of God, natural disasters, strikes, epidemic or pandemic, or internet outages (“Force Majeure Events”). Tempesta’s performance obligations shall be suspended during the continuance of any such event.
Waiver
Customer understands and agrees that any waiver of Customer’s adherence to the terms of this Agreement is not considered a waiver of Customer’s future adherence to the terms of this Agreement.
Assignment
Customer may not assign this Agreement to any other party without the express written permission of Tempesta, which shall not be unreasonably withheld.
Transfer of Ownership
Customer agrees that even if Tempesta is merged with or is acquired by another company that assumes control of Tempesta, this Agreement still continues in full force and effect.
Modification
Tempesta may amend this Agreement at any time and in its sole discretion by posting the revised terms on the Tempesta Platform and/or the Tempesta website. Unless otherwise stated in such revision, the revised terms will take effect when they are posted. Tempesta will reasonably endeavor to provide Customer notice of any such changes. However, Customer is responsible for reviewing the notice and any changes. This Agreement may not be otherwise amended except in writing signed by both parties. Customer’s continued use of the Tempesta Platform and Services following changes to the Agreement will constitute acceptance of changes or modifications to this Agreement.
Headings
The Parties understand and agree that the headings in this Agreement are included only as a matter of convenience and in no way define, limit or extend the scope of this Agreement or any of its provisions.
Entire Agreement; No Reliance
This Agreement, together with all Orders and incorporated policies, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous proposals, discussions, communications, representations, marketing materials, or understandings.
Customer acknowledges that it has not relied upon any statement, representation, promise, or guarantee not expressly set forth in this Agreement.
No amendment shall be effective unless in writing signed by both parties, except as expressly permitted under the Modification section.
Digital Signature
By using the Service, Customer acknowledges that it agrees to these terms and conditions, and that it waives any and all defenses with regards to physical signature of this Agreement.