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1.0 Terms of Service |
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This Customer Service Agreement, henceforth referred to as
Terms of Service, is hereby set forth between ScorchHosting, henceforth referred to
as “COMPANY” in Columbus OH, henceforth referred to as “COMPANY LOCATION” and
Customer as designated on the order form for the purchase of the
"Service" or "Services" set forth in the order form,
which shall henceforth be referred to as a "Request for Server
Form". This agreement becomes effective on Saturday 31st 2010f
July 2010 01:09:42 AM (UTC)
henceforth referred to as "Date of Agree Binding" and will continue
for a term of 1 (one) month, henceforth referred to as the “Binding
Duration”. Every cycle of the Binding Duration, the CUSTOMER will receive a
Customer Invoice, henceforth referred to as “Invoice” or “Customer Invoice”
outlying all charges. |
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1.1 Fees |
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CUSTOMER agrees to pay the COMPANY all fees, service charges,
monthly fees, setup fees, penalty fees, and usage fees as indicated on their
Request for Server Form. Furthermore, the Customer acknowledges that the
pricing set forth in the Request for Server Form, and Customer Invoice,
commits to be liable for and pay all related fees. |
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1.2 |
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All payments shall be make in United
State Dollars dominations, and will be made out to COMPANY, at the ADDRESS
indicated above, or at any other address given by a member of the COMPANY
MANAGEMENT, which will be given via a seven day notice to all customers. All
Customer Invoices will be sent out via electronic mail method 7 (seven)
business days before due date. The COMPANY reserves the right to charge any provided
credit cards, or paypal accounts, or other means to alleviate any charges
incurred by Customer. All customers outside of the State of |
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1.3 Late payment,
and no payment |
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Any CUSTOMER who does not remit payment as indicated in
section 1.1 of these Terms of Service, within 7 (seven) business days of
their payment due date, will be subject to a
$5 (Five United States Dollars) late fee. If after 10 (ten)
business days of their payment due date, the
CUSTOMER shall be charged a $25.00 maintenance fee to have their services re-established.
Also if the COMPANY has not received a valid payment from the CUSTOMER, the COMPANY
reserves all rights to terminate this Terms of Service, and thusly terminate
a CUSTOMERS account with the COMPANY without a refund. |
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1.4 |
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In the event the CUSTOMERS issues a reversal of charges upon
any payment in remittance to the COMPANY, said CUSTOMER will incur a $35.00
(Thirty-Five United States Dollars) reversal fee charge. This fee is separate
and in addition to any payments due to the COMPANY. |
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1.5 Refunds |
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A refund will only be issued to a CUSTOMER as outlined in the
SLA (Service Level Agreement) section of these Terms of Service. Otherwise, no refunds
will be granted. Therefore, except as in stated under the SLA section, all payments to
the COMPANY are deemed nonrefundable. |
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2.0 Term |
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2.1 |
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The term of these Terms of Service shall commence on the Date
of Binding and continue for the duration of the Binding Duration, at which
point, these Terms of Service will automatically be reinstated. So long as
these Terms of Service remain in effect, it shall be automatically renewed at
the original fees for the respective Request for Server Form for additional
periods, unless either party gives written notice otherwise to the other
party, not less than seven (7) days prior to the expiration of such Request
for Server Form. These Terms of Service may be renewed for additional terms
upon the mutual written consent of both parties. |
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3.0 Termination |
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3.1 |
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Either party may terminate these Terms of Service or any
Request for Server Form, upon written notice: (a) for any material breach
found within these Terms of Service which either party does not remedy within
nine (9) business days following notification by the non-defaulting party;
(b) upon either parties insolvency or liquidation as a result of which either
party ceases to do business. Notwithstanding anything herein to the contrary,
the COMPANY may terminate these Terms of Service or any Request for Server
Form without notice immediately for any breach of these Terms of Service. |
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3.2 |
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All requests for the cancellation of the CUSTOMER order,
henceforth referred to as “Server”, must in writing submit a cancellation
request to the COMPANY at the e-mail address billing@scorchhosting.net
within 5 business days before their normal receipt of their Invoice.
This cancellation request is considered an immediate request for
agreement termination and must be accompanied with all proper account
information to be valid. |
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4.0 Representation
and Warranties |
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4.1 |
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Each party represents and warrants that it has the right and
authority to enter into these Terms of Service, and that by entering into
these Terms of Service, it will not violate, conflict with or result in a
material default under any other contract, agreement, indenture, decree,
judgment, undertaking, conveyance, lien or encumbrance to which it is a party
or by which it or any of its property is or may become subject or bound. Each
party shall not grant any rights under any future agreement, nor will it
permit or suffer any lien, obligation or encumbrances that would prevent it
from performing under these Terms of Service. |
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4.2 |
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Customer represents and warrants that it will, at its own
expense, make, obtain, and maintain in force at all times during the term of
this Agreement, all applicable filings, registrations, reports, licenses,
permits and authorizations in order for Customer to perform its obligations
under these Terms of Service. The COMPANY represents and warrants that it
will, at its own expense, make, obtain, and maintain in force at all times
during the term of these Terms of Service, all applicable filings,
registrations, reports, licenses, permits and authorizations in order for the
COMPANY to provide the Services, and to perform its obligations under these
Terms of Service. |
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4.3 |
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Both parties represent and warrant that they will, at their
own expense comply with all laws, regulations and other legal requirements
that apply to them with respect to these Terms of Service, including
copyright, privacy and communications decency laws, advise each other of any
legislation, rule regulation or other law which is in effect or which may
come into effect after the Binding Date which has a material effect on any
provision of these Terms of Service. Both parties represent and warrant that
no consent, approval or authorization of or designation, declaration or
filing with any governmental authority is required in connection with the
valid execution, delivery and performance of these Terms of Service. |
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4.4 |
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Customer represents and warrants that it will: (a) not utilize
(or allow utilization of) the Services in a manner that: (i) is prohibited by
any law or regulation or the COMPANY policy, or to facilitate the violation
of any law or regulation or such policy; or (ii) will disrupt third parties'
use or enjoyment of any communications service or outlet; (b) not violate or
tamper with the security of any of the COMPANY’s computer equipment or
program; and (c) have an agreement with each Customer end user sufficient to
comply with the terms herein. |
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4.5 |
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THE REPRESENTATIONS AND WARRANTIES SET |
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5.0 LIABILITIES AND
LIMITATIONS |
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5.1 |
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THE REPRESENTATIONS AND WARRANTIES SET |
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5.2 |
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THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES
RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION OR USE
OF AN ACCOUNT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS
END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING SERVICES TO CUSTOMER; OR
(C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED
OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN IF
SCORCH HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL SCORCH HOSTING'S LIABILITY FOR DIRECT DAMAGES BE
GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER. |
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5.3 |
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IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES WHETHER OR NOT
FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL
OR PROFITS, SAVINGS OR REVENUE, HARM TO BUSINESS, WHETHER UNDER CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE WHATSOEVER, OR
ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, EVEN IF ADVISED BEFOREHAND
OF THE POSSIBILITY OF SUCH LIABILITY. |
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5.4 Jurisdiction |
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Any Jurisdiction needed to settle disputes in these Terms of
Services shall be settled under the laws governing business practices in the
State of |
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6.0 Usage |
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6.1 |
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Bandwidth usage will currently not be monitored unless the
CUSTOMER goes over 10% of the COMPANY’s allotted bandwidth, thiscurrently
being 4500GB, making 10% being 450GB. Any CUSTOMER found going over this
total will be charged for the bandwidth at the rate of $50+$3/GB
over their account space times 10. |
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6.2 |
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All customers are limited to the Background
Processes, henceforth referred to as "BG" (or "BGs") as stated on the
Request for Server Form, any customer who purposely breaks this limit
with a great frequency (at the discretion of the box administrator),
will be subject to a $20 overusage fee. Continued disobidence of the
BG limits will result in account termination. |
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6.3 |
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Please attempt to keep your load on our CPU down. Constant spiking of our CPU will not be tolerated. Any accounts found over-threading the servers CPU usage will be asked to investiage the problem, and if possible fix it. Increased CPU usage may require that the customer be charged a $20 (Twenty United States Dollars) overusage fee. |
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7.0 Network Abuse |
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7.1 |
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Customer acknowledges that Customer has read and understands,
and agrees to comply with, all applicable provisions of, the COMPANY, then
current Acceptable Use Policy (Section 7.0 of the Terms of Service) found at
URL. The COMPANY reserves the right to amend the Policy from time to time,
effective upon posting of the revised Policy or other notice to Customer. The
COMPANY agrees to provide a "hard copy" of said policy upon
Customer's written request. Violation of this Section by Customer or its
Customer's End Users may be deemed by The COMPANY to be a material breach of
these Terms of Service by Customer and The COMPANY may, in its sole
discretion, immediately suspend, disable or terminate the Service upon notice
to Customer for a violation of the Policy. The Company, or other relevant
authorities, may in their sole discretion determine that Customer has
inappropriately or incorrectly used the Service |
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7.2 |
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Customer expressly agrees that The COMPANY shall not be liable
to Customer for any action The COMPANY takes to remove or restrict access to
obscene, indecent or offensive content made available by Customer, nor for
any action taken to restrict access to material made available in violation
of any law, regulation or rights of a third party, including but not limited
to, rights under the copyright law and prohibitions on libel, slander and
invasion of privacy. |
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7.3 |
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Customer agrees to indemnify, defend and hold The COMPANY and
its officers, directors, employees, agents, affiliates and suppliers harmless
from and against any claims, actions, demands, losses and damages, including
attorney's fees, relating to any violation of these Terms of Service by
Customer, its End Users, or other users of its account, or the placement or
transmission of any message, information, software or other materials on the
Internet by Customer or End Users of Customer's account. This indemnification
shall survive the termination of these Terms of Service. |
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8.0 Service Level
Agreement |
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8.1 |
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The COMPANY offers a 97% network guarantee. At no time does
The COMPANY guarantee, however, that remote networks will remain accessible.
This network guarantee is the guarantee on behalf of The COMPANY that all
network equipment operated by The COMPANY remains in full operation,
providing at the minimum, local network access. The CUSTOMER will be charged
a credit for 5% of their bill, any time the Service Level Agreement,
henceforth referred to as “ |
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8.2 |
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At no time does The COMPANY guarantee the uptime of customer
premises hardware, whether provided directly by customer, purchased from The
COMPANY, or provided by The COMPANY for temporary or permanent usage. |
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9.0 ACCEPTABLE USE
POLICY |
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9.1 |
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This Acceptable Use Policy designates the actions, events,
proceedings, measures, procedures, and dealings prohibited by The COMPANY,
henceforth referred to as COMPANY to users of the The COMPANY’s Network. The
COMPANY reserves the right to amend, delete, or otherwise modify the
Acceptable Use Policy at any time, effective upon posting of the modified
Acceptable Use Policy to URL. |
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9.2 |
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The COMPANY’s Network may be used only for lawful purposes in
conjunction with local, regional, and federal laws. Transmission, broadcast,
allocation, distribution or storage of any material in violation of any
applicable law, regulation, decree, or act is strictly prohibited. This
includes, without limitation, material protected by copyright, trademark,
trade secret or other intellectual property right used without proper
authorization, and material that is obscene, abusive, or defamatory,
constitutes an illegal threat, or violates any laws, regulations, decrees, or
acts. |
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9.3 |
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Violation, infringement, breach, or abuse of system or network
security is prohibited, and may result in criminal and civil liability. The
COMPANY will investigate incidents involving such violations and may involve
and will cooperate with law enforcement if a criminal violation is suspected.
Examples of system or network security violations include, without
limitation, the following: |
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9.4 |
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Sending or distribution of unsolicited electronic mail
messages (defined in 9.5) or usenet, collectively defined as spam, including,
without limitation, advertising or announcements is explicitly prohibited. A
user shall not use a remote site's electronic mail server to relay mail
without the express permission of the remote site. |
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9.5 |
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All bulk email sent to recipients who have not expressly registered
permission for their addresses to be placed on the mailing list, and which
requires recipients to opt-out to stop further unsolicited bulk mailings, is
by definition Unsolicited Bulk Email. The sending of Unsolicited Bulk Email
is illegal in most of |
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9.6 |
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The COMPANY requires that all bulk electronic mail message
targets be registered using the double opt-in method. Upon primary opt-in,
the respective email recipient should receive confirmation regarding his or
her opt-in. Once a return email has been received by the originator of the
email confirming the email address and the willingness of the receiver to
receive bulk e-mail, the double opt-in process is complete. |
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INDIRECT, ATTEMPTED, AND ACTUAL VIOLATIONS OF THE POLICY BY
CUSTOMER, A THIRD PARTY ON BEHALF OF A CUSTOMER OR A CUSTOMER'S END
USER, SHALL BE CONSIDERED VIOLATIONS OF THE POLICY BY SUCH CUSTOMER OR END
USER. THROUGH VIOLATION OF THIS ACCEPTABLE USE POLICY, CUSTOMER COMES IN
VIOLATION OF THE TERMS OF SERVICE AND CAN BE DEALT WITH IN ACCORDANCE TO THE
GUIDELINES SET |