This Agreement for Diagnostic Site Checking (the "Agreement" for "DSC") of a specified website (the "website") is by and between the individual or company submitting this documented request for services (the "Customer") and DesignByMoonlight Website Services, LLC ("DesignByMoonlight"), an Oregon company, with its principal office at 1190 SW Sunset, Corvallis, OR 97333, and is effective on this date on which these terms and conditions are agreed to and accepted online by the Customer. The Customer and DesignByMoonlight hereby agree as follows:

1. Services Performed With Respect to the Website:
   All services will be performed subject to the Terms of Service below.
   
   a. Tier 1 Diagnostic Site Checking will attempt to visit the Customer's website home page on a best-effort basis to determine whether the Customer's home page is available to visitors. Whenever possible, these checks will be performed at regular daily intervals Monday through Saturday before 8:00AM Pacific time. No testing will be performed on Sunday, Pacific time.
   
   b. Tier 2 Diagnostic Site Checking, if selected, will additionally attempt to visit all the Customer's website pages on a best-effort basis to determine whether the Customer's pages are available to visitors, and whether all links are functional. These checks will be performed on one day per calendar week, Monday through Saturday, Pacific Time. No testing will be performed on Sunday, Pacific time.
   
   c. Tier 3 Diagnostic Site Checking, if selected, will additionally attempt to compare a security checksum of each website page with a prior correct corresponding checksum for each page to determine whether any changes have been made to that page. These checks will be performed on six days per calendar week, Monday through Saturday, Pacific Time. No testing will be performed on Sunday, Pacific time.
   
   d. If the Customer's website fails a Diagnostic Site Checking Test, an automated attempt to notify the Customer by email will occur as soon as possible after the failure is found by our system.
   
   e. If the failure under (d) above is a Tier 1 test failure, customer agrees to accept a maximum of one hour of diagnostic and service work at no charge to identify the cause of the service failure. Diagnosis and service work after the first hour will be performed on customer request at DesignByMoonlight's standard rates.
   
   
2. Terms of Service:
   a. Fees. Each service tier will incur a fee as listed on the signup page whether or not the Customer's website is found at any time to be unavailable to visitors, and, in case of unavailability, regardless of the reason for that unavailability.
   
   b. Tier 1 and 2 Term of service. A minimum term of one year, and equivalent fee, will be required initially for the service chosen, after which the service and fee will automatically be extended in one-year increments. Regardless of tier, if the service is stopped by the Customer at any time and then restarted, a minimum term of three months and an equivalent prorated fee will be required to restart the requested service.
   
   c. Tier 3 Term of service. A minimum term of three months, and equivalent fee, will be required initially for the service chosen, after which the service and fee will automatically be extended in three-month increments. Regardless of tier, if the service is stopped by the Customer at any time and then restarted, a minimum term of three months and an equivalent fee will be required to restart the requested service.
   
   d. Invoicing. Invoice for the initial term will be issued at the time the Customer signs up for the DSC service. In the event Customer requests to cancel the service prior to the end of the initial term, a credit, not a refund, will be issued for the balance of the amount. Subsequent to the first term, accrued charges will be billed in advance according to DesignByMoonlight's standard terms in force at the time of the invoice.
   
   
3. Limitations of Service:
   a. DesignByMoonlight reserves the right to decline to provide this service for any website, or end the service for any or all websites at any time, at its sole discretion.
   
   b. DesignByMoonlight will not be responsible in any way for uptime, performance, quality, security or service failure of the Customer's hosting service. The Customer agrees that the Customer remains solely responsible for monitoring of all aspects of its own website and hosting service. The Diagnostic Site Checking program is intended only to assist the Customer with that responsibility.
   
   c. Only the specific services described in this document for each service tier are guaranteed to be performed. All Tier 2 and Tier 3 tests will require hosting-service response to a http request, and the website must be available from the domain name through the Domain Name System (DNS). Although DesignByMoonlight will make every effort to successfully identify DNS domain name failure, DesignByMoonlight cannot guarantee that DSC will identify failures caused by or related to the DNS system, including failures due to lapsed domain names. For all services, any robots exclusion protocol instructions included in a robots.txt file on the website will be honored, and may limit the pages visited, backed up, tested, or serviced through DSC. Customer agrees that DesignByMoonlight will not be responsible for the consequences of service limitations imposed by the customer's robots.txt settings.
   
   d. For Tier 1 service, no tests are included for pages other than the home page, for other content, for broken links, for non-HTML content, for corruption of or changes to page content, for incorrect display of home page or any content, or for any other service failure. In addition, no checksum or other security tests of any kind are included for any pages.
   
   e. For Tier 2 service, no checksum or other security tests of any kind are included for any pages.
   
   f. All Diagnostic Site Checking will be performed on a best-effort basis. No guarantee of correct operation of Diagnostic Site Checking is made. Neither time of day of test nor day of week of Tier 2 weekly test is guaranteed. Time of day of Tier 1 or 3 test is not guaranteed. The DSC service may be suspended temporarily by DesignByMoonlight with or without notice to the Customer; no charges will be incurred by the Customer during periods when the Customer's DSC service is suspended or nonoperational.
   
   g. No DSC checks of sites hosted on secure servers or requiring the https protocol will be provided.
   
   h. Use of Diagnostic Site Checking does not guarantee that a checked website is online or offline at any time other than during the check. If the provided checking frequencies are not adequate for the Customer's needs, the Customer is advised to request a custom checking frequency that minimizes the time a website problem may go undetected. This custom checking frequency will incur additional charges.
   
   i. Use of Tier 3 Diagnostic Site Checking requires a valid checksum of an authorized version of each website page. Unless this checksum exists and is correct, DesignByMoonlight does not guarantee that any results of Tier 3 testing are meaningful or correct. It is the Customer's sole responsibility to inform DesignByMoonlight of customer-initiated website page changes that create a new authorized version of any website page. If Customer makes authorized changes to any website page without informing DesignByMoonlight of the fact, DesignByMoonlight does not guarantee the correctness of any Tier 3 testing results. Use of Tier 3 DSC does not guarantee that a checked website is free of unauthorized changes at any time other than during the check. If the provided checking frequencies are not adequate for the Customer's needs, the Customer is advised to request a custom checking frequency that minimizes the time a website problem may go undetected. This custom checking frequency will incur additional charges.
   
   j. Although DesignByMoonlight will make every effort to rapidly report checking test failures, delays may occur between detection of failure and reporting of that failure to the Customer.
   
   k. Although DesignByMoonlight will make every effort to rapidly diagnose and service Tier 1 failures under the free hour of diagnosis and service, this work will be prioritized by DesignByMoonlight on a time-available basis. No guarantee of response time is made for this free diagnosis and service work.
   
   l. DesignByMoonlight will not be responsible for the Customer's receipt or non-receipt of notification of website status once notification is delivered by DesignByMoonlight through normal communication methods such as email. DesignByMoonlight will be deemed to have discharged its responsibility to notify the Customer when email notification is sent, voicemail notification is provided, or other normal steps to notify the Customer have been attempted. Furthermore, DesignByMoonlight will not be responsible for notification failures caused by or due to failure of third-party communication carriers or other parties. Customer is strongly advised not to provide a contact email address related to the website domain under test, since emails to that domain may fail if the website is not online.
   
   m. Except as provided under 1e above, all DesignByMoonlight work requested by the Customer to attempt to restore website service or perform other related services will be charged at DesignByMoonlight's standard hourly rate, or under other such terms as are mutually agreeable to DesignByMoonlight and the Customer.
   
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4. Other Terms and Conditions:
   a. Submission of the DesignByMoonlight contactus.html online form with a check mark in the input item labeled "I have read and agree to all terms & conditions" shall be deemed by the Customer and DesignByMoonlight to be a legal signature of agree­ment to and acceptance of these terms and conditions in their entirety by the Customer, and to authorize all access to all website components and files which enable or facilitate delivery of the services requested by the Customer. Customer furthermore represents by this legal signature that Customer has authority to request these services for the website named in the application, or otherwise provided.
   
   b. DesignByMoonlightwarrants that its services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY DESIGNBYMOONLIGHT CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE.
   
   c. DesignByMoonlight's liability, including but not limited to the Customer's claims of contributions and indemnification related to third party claims arising out of services rendered by DesignByMoonlight, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, shall be limited to the lesser of (i) fifty dollars ($50.00) or (ii) payment received by DesignByMoonlight from the Customer for the particular service provided giving rise to the claim. Notwithstanding anything to the contrary in this Agreement, DesignByMoonlight shall not be liable for any special, indirect, consequential, lost profits, or punitive damages and neither DesignByMoonlight nor any of its agents warrant that the work product or service functions will be uninterrupted or error-free. The entire risk as to the quality and performance of the work product or service is with the Customer. In no event will DesignByMoonlight be liable to the Customer or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond DesignByMoonlight's reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to use the work product or service, failure of any service provider, of any telecommunications carrier, of the internet backbone, of any internet servers, Customer or Customer's site visitor's computer or internet software, even if DesignByMoonlight has been advised of the possibility of such damages. The Customer agrees to limit DesignByMoonlight's liability to the Customer and any other third party for any damage on account of any error, omission or negligence to a sum not to exceed the lesser of (i) fifty dollars ($50.00) or (ii) the payment received by DesignByMoonlight for the particular service provided giving rise to the claim. The limitation of liability set forth herein is for any and all matters for which DesignByMoonlight may otherwise have liability arising out of or in connection with this Agreement, whether the claim arises in contract, tort, statute, or otherwise.
   
   d. The Customer's exclusive remedy for any claim arising out of or relating to this Agreement will be for DesignByMoonlight, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which DesignByMoonlight is at fault, or (ii) return to the Customer the fees paid by the Customer to DesignByMoonlight for the particular service provided that gives rise to the claim, subject to the liability limitation described above. The Customer agrees that it will not allege that this remedy fails its essential purpose.
   
   e. Severability. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
   
   f. Independent Contractor. DesignByMoonlight is an independent contractor of the Customer.
   
   g. Assignment. The Agreement is not assignable or transferable by the Customer. This Agreement is not assignable or transferable by DesignByMoonlight without the written consent of the Customer, which consent shall not be unreasonably withheld or delayed.
   
   h. Disputes. DesignByMoonlight and the Customer agree that any unresolved conflicts arising out of or relating to this Contract shall be submitted to non-binding mediation unless DesignByMoonlight and the Customer mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of this Agreement.
   
   i. Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
   
   j. Governing Law and Construction. This Agreement will be governed by and construed in accordance with the laws of the state of Oregon, without regard to the principles of conflicts of law. The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party. Each party (i) agrees that any action arising out of or in connection with this Agreement shall be brought solely in courts of the State of Oregon, (ii) hereby consents to the jurisdiction of the courts of the State of Oregon, and (iii) agrees that, whenever a party is requested to execute one or more documents evidencing such consent, it shall do so immediately.
   
   k. Entire Agreement; Survival. This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between the Customer and DesignByMoonlight respecting the subject matter hereof. This Agreement may only be amended by an agreement in writing executed by the parties hereto.
   
   l. Force Majeure. DesignByMoonlight shall not be responsible for delays or failures (including any delay by DesignByMoonlight to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, illness, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.