Service Level Agreement / Terms of Service
This AGREEMENT (the "Agreement") is made and entered into between TCCHost.net/Tera Cyber Creations/Business Cinch Marketing ("Host") and you ("Client") (each being referred to individually as a "Party" and collectively as the "Parties"). By registering for an account with TCCHost.net/Tera Cyber Creations/Business Cinch Marketing you agree to all of the terms and conditions contained in this agreement:
Host agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the "Web Site") as set forth or described in the Pricing Schedule contained on tccHost.net. Host shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically set forth in the Pricing Schedule. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host Additional Services the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services").
Client shall be responsible for maintaining its own content via FTP (file transfer protocol). Client also assumes responsibility for backups including, but not limited to, their website and email. Host will provide backup in accordance with industry accepted standards of due diligence, but does not guarantee the integrity or usability of these backups.
Availability of Web Site
The Web Site shall be accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Inter-net slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client's sole and exclusive remedy and Host's sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Host, or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a total period of three (3) hours and thirty-six (36) minutes, Client shall receive a credit against future Hosting Services equal to the fees paid by the client for this month, not including overage fees, domain registration fees or software licensing costs, not exceeding the total amount of Hosting Service fees paid by the Client to the Host in the previous month.
Domain Name Registration
As part of the initial Hosting Services, Client shall provide Host with a registered domain name, or Host shall register domain name(s) selected by Client provided that such domain name is available for registration and does not violate any ICANN or other registration services' policies, or any law or regulation. Client agrees to promptly reimburse to Host any fees paid by Host to a domain-name registrar or other registration services with respect to the registration and maintenance of such domain name.
Domain Name Disputes
Host shall not be liable for any domain-name disputes which Client may enter into or otherwise encounter. Such disputes shall be governed by the relevant ICANN dispute procedures adopted by the domain-name registrar with which Client's domain-name has been registered.
Additional Storage and Transfer
In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may, upon two (2) days written e-mail notice to Host, request that Host (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the Pricing Schedule hereto. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Host shall propose a procedure and budget for complying with such request.
Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host's sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site.
Limitations on Client Content
Client shall place only content that does not contain any materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Host to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.
Client may not initiate the following on our servers:
- any process that requires more than 8Mb of memory space, more than 30 CPU seconds, or use more than 5% of all available system resources at any time;
- any type of interactive real-time chat applications that require server resources;
- stand-alone, unattended server-side processes at any point in time on the server;
- any software that interfaces with an IRC (Internet Relay Chat) network; and
- remote access to databases located on the Host's servers without written approval.
Client shall not send bulk e-mail, commonly know as spam, from or through their account. Any use of Client's account to send bulk e-mail shall be a material breach of this agreement and shall be grounds for immediate cancellation of Client's account without notice. Any charges related to spam will be charged to the customer.
Refusal or discontinuation of service
Host reserves the right to refuse or discontinue service to anyone at Hosts's sole discretion. Host may deny you access to all or part of the service without notice if you engage in any conduct or activities that Host in its sole discretion believes violates any of the terms and conditions in this agreement. Host shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that Host has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Host reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. Host also reserves the right to refuse refunds in cases where Host believes abuse has taken place.
Hosting Services Fees
Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in the Pricing Schedule hereto. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein).
Host may terminate service when Client's payment is late and shall not be responsible for maintaining any data Client may have uploaded to Host's server. Host reserves the right to suspend the Client's services after 72 hours if payment is not received or no other arrangement has been made. Upon account suspension, Host is not responsible in any way for Client's data. Host reserves the right to require a re-activation fee of 15 USD to cover administrative and processing fees. Exceptions may be made at the Host's discretion if Host is notified IN ADVANCE of any late payments.
Money Back Guarantee
Each plan includes a full 7-days money back guarantee. If Client is not completely satisfied with Host's services within the refund time period of 7 days, then Client will be given a full refund of the contract amount excluding overages. No refund is available after that period. This policy does not apply to any additional services such as overages, disk space, bandwidth, maintenance fees, etc. Accounts cancelled/terminated for violating the Terms Of Service do not qualify for the 7-day money back guarantee. Only first-time accounts are elegible for a refund.
Disclaimer of Warranty
HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host.
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld.
Limitation of Liability
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT'S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
Termination and Renewal
This Agreement shall be effective when signed and Clients assent by virtue of clicking the button or checkbox at the bottom of this agreement shall constitute signing by the Parties and thereafter shall remain in effect unless earlier terminated as otherwise provided in this Agreement (the "Initial Term"). This Agreement shall automatically be renewed beyond the Initial Term for additional one(1) year terms (each, a "Renewal Term") unless Client provides Host with a written notice of termination at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term.
Host may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Hosting Services not yet rendered on the date of termination.
Termination and Payment
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
This Agreement and Schedules referenced herein constitute the entire agreement between Client and Host with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Choice Of Law
This agreement is governed by the laws of the State of Ohio. You hereby agree to submit to the exclusive jurisdiction of the courts of the State of Ohio. Use of this Web site is unauthorized in any jurisdiction that does not give full effect to all provisions of these Terms.
Client shall not assign, without the prior written consent of Host, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
Modification and Notice
Host has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the tccHost.net home page, or upon notice by electronic mail, or postal mail. Client's continued use of the Host's Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Client's only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Host in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate this agreement by delivering notice to Host. Such notice will be effective upon receipt by Host.
The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
This agreement supersedes any written, electronic, or oral communication you may have had with Host or any agent or representative thereof, and constitutes the complete and total agreement between the parties. Should any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable. By placing and continuing to maintain or place information on Host's servers you are stating and acknowledging that you have read the aforementioned terms and conditions and that you understand such terms and conditions and agree to be bound by them.