Terms of Service
1. Parties. This agreement ( AGREEMENT ) is between Teztech ( PROVIDER ) and the party as specified in the Service Order ( CLIENT ) for the PROVIDER's Internet Hosting Services, including computer software, electronic documentation and printed materials ( SOFTWARE ) and Internet Hosting Server Services ( SERVICES ), including email, web, ftp, database, telnet and other services provided by the PROVIDER's Hosting Servers and associated networks. By downloading, installing, copying, or otherwise using the SOFTWARE or by downloading, uploading or otherwise using or accessing the SERVICES, you agree to be bound by the terms of this agreement. If you do not agree to the terms of this license agreement, promptly notify PROVIDER in writing, destroy all copies of the SOFTWARE, including any updates, in your possession (or return them to PROVIDER) and do not use or access the SERVICES.
2. Online Policies. CLIENT agrees to comply strictly with PROVIDER's Acceptable Use Policy and Copyright Infringement Policy. CLIENT understands that SERVICES are subject to immediate termination without compensation for non-compliance with these policies. Further, CLIENT will be responsible for the full amount of any tangible and intangible damages such non-compliance may cause. PROVIDER reserves the right to change the policies to reflect the dynamic nature of the Internet. Both policies are available on-line any time or as a hard copy by written request.
3. IP Addresses. IP addresses are not portable and are not assigned for independent administration or distribution. CLIENT understands that IP assignments are not guaranteed, and may be modified as required by PROVIDER and/or the American Registry for Internet Numbers (ARIN) or other applicable authority.
4. Fees. CLIENT agrees to pay a setup fee, a monthly fee, usage fees (if any), and web traffic fees (if any). The setup fee and first month fee is due upon sign up. PROVIDER will present a fee schedule, including term commitment (if any) to CLIENT before sign up. PROVIDER requires a 30 day advanced notice for cancellations of SERVICES. Payments are due within 10 days from CLIENT's receipt of PROVIDER's invoice and are subject to late charges thereafter, calculated at the greater of 1.5% or the maximum rate permitted by law. PROVIDER may, after making reasonable attempts to notify CLIENT, take remedies, including but not limited to: decreasing performance, refusing account changes, deactivating SOFTWARE or disconnecting SERVICES for late or non-payment of fees.
5. Price changes. PROVIDER has the right to change the services levels and prices of the SOFTWARE and SERVICES at any time with 30 days notice. If the parties fail to agree on a reclassification or modification of the service level or price, either party may terminate this agreement without liability, except for previously accrued fees.
6. term and termination. The AGREEMENT term commences on the installation date and continues for the term specified on the Sales Order. The term automatically renews for one-month renewal periods absent contrary written notice provided at least 30 days in advance. Termination for cause may occur upon: (a) material breach of AGREEMENT; (b) 5.CLIENT's failure to function as a going concern or operate in the ordinary course; (c) assignment by CLIENT for the benefit of creditors; or (d) voluntary or involuntary bankruptcy filing by or against CLIENT. Except where early termination occurs due to lack of agreement on new pricing, if CLIENT terminates AGREEMENT prior to the end of a Term, CLIENT shall pay the amount CLIENT would otherwise have had to pay to PROVIDER over the remainder of the Term, calculated based on the remaining number of months at a monthly rate based on the monthly average billings during the Term. The cancellation fee also applies at PROVIDER's election upon its termination of AGREEMENT for CLIENTS's material breach, without any offset or mitigation of damages required therefore. Further, a CLIENT who terminates the AGREEMENT after signing and accepting the Sales Order, but prior to the installation date will be charged $250.00 order cancellation fee. CLIENT agrees to pay any and all cancellation fees within ten 10 days of any specified early termination event.
7. Collateral. CLIENT's servers, data and other equipment and property located at PROVIDER's premises will be used as collateral for unpaid bills and penalties. The collateral will not be released until CLIENT pays his bills and/or penalties in full. CLIENT understands that is granting a lien on the collateral and that, in the event CLIENT's unpaid balances are more than the value of the collateral, PROVIDER may foreclose and take possession of the collateral.
8. Billing information updates. CLIENT agrees to provide to PROVIDER any changes to the billing information promptly. Billing information includes but is not limited to credit card information, billing address, billing contact phone number and checking account information.
9. No returns. PROVIDER will not return collected fees for SOFTWARE or SERVICES.
10. Cut off period for billing errors. CLIENT is responsible for the payment of all charges for services and facilities furnished by the PROVIDER to the CLIENT. A 90 day cut off period is set for billing error claims. CLIENT agrees that he has no rights to claim any billing errors for period earlier than 90 days from the date of the claim. All bills are final after 90 days.
11. Domain name registration. If PROVIDER has paid for the registration or renewal of CLIENT's domain name and CLIENT cancels his/her SERVICES, CLIENT shall pay PROVIDER $35.00 per year for the each domain name registration or renewal.
12. Indemnification. The SOFTWARE and SERVICES provided to CLIENT may only be used for lawful purposes. Transmission or storage of any information, data or material in violation of any US Federal or State regulation or law is prohibited. This includes, but is not limited to, material protected by copyright, trade secret, or any other statute, threatening material, or obscene material. CLIENT is responsible for adherence to any rules and regulations pertaining to the communications means by he shall connect his computers to the SERVICES. CLIENT shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants' and attorneys' fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the SOFTWARE and SERVICES provided by PROVIDER to the CLIENT.
13. No solicitation. CLIENT agrees not to approach PROVIDER's employees with proposals to hire them as his own employees or contractors. If CLIENT were to hire any of PROVIDER's employees, CLIENT agrees to pay PROVIDER for each employee thus hired, the greater amount of: three years salary for that employee as CLIENT is to pay such employee, or $100,000.
14. Entire Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.
15. Modification. This Agreement shall not be modified, amended, canceled or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by both of the parties hereto.
16. Waiver. Performance of any obligation required of a party there-under may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
17. Separability. If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed separable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
18. Governing Law. This Agreement shall be governed by the laws and judicial decisions of the State of Kentucky.
19. Benefit of Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.
20. No Partnership or Agency. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis--++Ã¦-vis one another.
Disclaimer of Warranty
21. NO WARRANTIES. The SOFTWARE and SERVICES are provided "as is" without warranty of any kind. To the maximum extent permitted by applicable law, PROVIDER and its suppliers disclaim all warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and any warranty against infringement, with regard to the SOFTWARE and SERVICES. This limited warranty gives you specific legal rights. You may have others that vary from state/jurisdiction to state/jurisdiction.
22. CLIENT REMEDIES. PROVIDER's entire liability and CLIENT's exclusive remedy shall not exceed the price paid for the SOFTWARE and SERVICES.
23. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall PROVIDER or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use PROVIDER's SOFTWARE or SERVICES, even if PROVIDER has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.