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Terms of Service
This User Agreement ("Agreement") is an agreement between Carmosa ("Carmosa")of Rocklin CA. U.S.A. and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Order Form. Such party is referred to in this Agreement as "Customer" or "you". PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING CARMOSA'S ACCEPTABLE USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. Carmosa reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Carmosa. Activation of the Services shall indicate Carmosa's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Carmosa will provide to Customer the Services selected by Customer set forth on the Order Form.
1. Acceptable Usage Policy.
Under this Agreement, Customer shall comply with Carmosa's then current "Acceptable Usage Policy", as amended, modified or updated from time to time by Carmosa, which currently can be viewed at http://www.TopHostingSolutions.com/AUP.php, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the Acceptable Usage Policy and that the terms of the Acceptable Usage Policy are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the Acceptable Usage Policy, the terms of the Acceptable Usage Policy shall govern. Carmosa does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, Carmosa may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the Acceptable Usage Policy. In the event Carmosa takes corrective action due to a violation of the Acceptable Usage Policy, Carmosa shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Carmosa shall have no liability to Customer or any of Customer's customers due to any corrective action that Carmosa may take (including, without limitation, disconnection of Services).
2. Amendment.
Carmosa may amend, modify or update this Agreement or the Acceptable Usage Policy at any time in its sole discretion, and Customer shall be bound by any such amendment, modification or update. Carmosa may, but is under no obligation to, provide notice of any amendment, modification or update of this Agreement or the Acceptable Usage Policy. Any modification is effective on the earlier of two days after posting on Carmosa's website or two days after the sending of a notice by Carmosa to Customer by email or conventional mail. If any material modification to this Agreement or the Acceptable Usage Policy is unacceptable to you, you may terminate your subscription as provided in Section 3. However, if you do not terminate the Agreement, or if you continue to use the Services following effectiveness of the modification, your continued use will mean that you have accepted that modification. Carmosa reserves the right to amend its service offerings and add, delete, suspend or modify the terms and conditions of the Services at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
3. Term; Termination; Cancellation Policy.
The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or canceled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated (i) by Carmosa in the event of nonpayment by Customer, (ii) by Carmosa, at any time, without notice, if, in Carmosa's judgment, Customer is in violation of any term or condition of the Acceptable Usage Policy or Customer's use of the Service disrupts or, in Carmosa's judgment, could disrupt, Carmosa's business operations and (iii) by Carmosa in accordance with Sections 1, 8, and 9 of this Agreement.
If Carmosa cancels this Agreement prior to the end of the Term or you cancel this agreement prior to the end of the Term, Carmosa shall not refund to you any fees paid in advance of such cancellation and (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (ii) you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term.
4. Billing and Payment.
Payment Policy
- Setup Fee
- The setup fee is required before service is activated, if applicable.
- The setup fee and domain name registration fee are non-refundable.
- Hosting Fees
- The minimum contract is 1 month.
- All services are on a monthly (1 month), quarterly (3 month), semi-annual (6 months) or annual (12 month) prepayment basis.
- Full payment of the setup fee, if applicable, and, if the account is not a domain transfer, the domain name registration fee, are required before any hosting service is rendered.
- Quarterly prepayment receives a 5% discount on monthly hosting fees.
- Semi-annual prepayment receives a 10% discount on monthly hosting fees.
- Annual prepayment receives a 15% discount on monthly hosting fees.
- The monthly, quarterly, semi-annual or annual prepayment is non-refundable and cannot be pro-rated.
- No bills or invoices will be sent to clients. Statements can be found in the control panel.
- All payments are due at the beginning of the service period on the month day that the signup was completed or on the month day of any plan change.
- Payment Method - Credit Card
- Carmosa accepts only credit card payments (Visa, MasterCard, American Express, Discover).
- Online credit card payment is authorized and assessed in real time.
- Once an order is successfully submitted, the client is subject to Carmosa's refund policy.
- Credit card will be billed on the first day of the billing cycle. If the credit card fails, we will retry daily for 3 days. If the credit card fails a 3nd time, the account will be suspended. If it fails a 4th time, the account may be cancelled.
- If payment is not received on time, then the account is cancelled.
- Policy Changes
- Carmosa reserves the right to change prices at any time.
- All monetary transactions will occur in $US dollars.
- Additional Features
- Additional features such as disk space and email can be added at any time and are billed monthly.
- Monthly additional feature prices are not prorated.
- Add on costs are non-refundable regardless of whether the service was used.
- Credit Card: Charges are assessed in real time for the current month and every upcoming month until the end of their billing cycle.
- Credit card will be billed on the first day of the billing cycle. If the credit card fails, we will retry daily for 3 days. If the credit card fails a 3nd time, the account will be suspended. If it fails a 4th time, the account may be cancelled.
- Additional services will be activated when payment is received.
Renewal and Billing Schedule
Carmosa automatically renews your account based on your previous payment option. Those who have chosen the yearly payment option will automatically be renewed for another year unless Carmosa is contacted prior to the anniversary date of your service. The same schedule applies to those accounts that have opted for quarterly payment.
5. Carmosa as Reseller or Licensor.
Carmosa is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-Carmosa Product"). Carmosa shall not be responsible for any changes in the Services that cause the Non-Carmosa Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-Carmosa Product either sold, licensed or provided by Carmosa to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Carmosa's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Carmosa Product are limited to those rights extended to Customer by the manufacturer of such Non-Carmosa Product. Customer is entitled to use any Non-Carmosa Product supplied by Carmosa only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Carmosa to Customer through any Non-Carmosa Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Carmosa Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
6. IP Address Ownership.
If Carmosa assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to Carmosa, and Customer shall have no right to use that Internet Protocol address except as permitted by Carmosa in its sole discretion in connection with the Services, during the term of this Agreement. Carmosa shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Carmosa, and Carmosa reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
7. Caching.
Customer expressly (i) grants to Carmosa a license to cache the entirety of the Customer Content and Customer's website, including content supplied by third parties, hosted by Carmosa under this Agreement; and (ii) agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
8. CPU Usage.
Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Carmosa's servers. Any violation of this policy may result in corrective action by Carmosa, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Carmosa's sole and absolute discretion. If Carmosa takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
9. Bandwidth and Disk Usage.
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). Carmosa will monitor Customer's bandwidth and disk usage. Carmosa shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Carmosa's sole and absolute discretion. If Carmosa takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
10. Property Rights.
Carmosa owns all right, title and interest in and to the Services and Carmosa's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
11. Customer Website; ECommerce; Customer Warranties.
Customer shall be solely responsible for the development, operation and maintenance of Customer's website, online store and ecommerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation (i) the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products, (ii) ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and (iii) ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its website and online store.
Customer shall be responsible for the security and confidentiality of any customer information (including, without limitation, customer credit card numbers) that Customer may receive as a result of its website or online store.
Customer is responsible for keeping a copy of their most current web site files as backup on a remote system (not on Carmosa servers). Carmosa is not responsible for any lost files, information, or data. Carmosa does provide a file retrieval service for a fee but does not guarantee it's availability.
Customer understands that system updates occur in real-time and as queued batch processes. For example, account passwords are currently updated as queued batch processes, therefore the update does not occur in the system instantaneously. Carmosa reserves the right to modify the processing times at any time without notice. If a client or Carmosa support personnel (when authorized by client) makes any modifications to a hosting account, the client is responsible to make sure these updates have occurred in our system.
Customer represents and warrants to Carmosa that Customer owns or has the right to use the Customer Content and material contained therein, including all text, graphics, sound, music, video, programming, scripts and applets, and the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not, (i) infringe or misappropriate any copyright, patent, trademark, trade secret or any other proprietary right of a third party, (ii) violate any criminal laws or (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation. Customer grants Carmosa the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
12. Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through or from Carmosa, at Customer's own risk. Customer acknowledges and agrees that Carmosa exercises no control over, and accepts no responsibility for, the content of the information passing through Carmosa's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF Carmosa, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "Carmosa PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT Carmosa PROVIDES. NO Carmosa PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. Carmosa IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY Carmosa. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY Carmosa PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
13. Indemnification.
Customer agrees to indemnify, defend and hold harmless Carmosa and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Services, (ii) any violation by Customer of the Acceptable Usage Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
14. Limitation of Liability.
Customer agrees that no Carmosa Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Carmosa at the time) which may exist in the Services or Carmosa's equipment used to provide the Services.
Under no circumstances, including negligence, shall any Carmosa Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Carmosa has been advised of the possibility of such damages. No Carmosa Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Carmosa's records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Carmosa's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
Customer understands, acknowledges and agrees that if Carmosa takes any corrective action under this Agreement because of an action of Customer or one if its customers or a Reseller Customer, that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Carmosa shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Carmosa.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
15. Force Majeure.
Carmosa shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
16. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by California law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in California. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Los Angeles, California, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement.
17. Assignment.
Customer shall not have the right to assign this Agreement without the prior written consent of Carmosa. This Agreement shall be binding upon and inure to the benefit of Customer and Carmosa and their successors and permitted assigns.
18. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
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