Terms of Service
- Host = ServerGuy and/or its parent company.
- Owner, User, You, Your = You, the paying customer.
- Fees = The Setup Fees, Recurring Fees and Non-Recurring Fees
- Initial Term = that period of time commencing upon the Service Commencement Date and ending approximately 1 calendar month afterwards.
- Non-Recurring Fees = those fees set forth on the Service Order that are due when and if a particular Service is utilized, such as additional bandwidth used by you during the term of this Agreement.
- Recurrence Period = the recurring period upon which you agree to pay for the Services as set forth in the Service Order, typically 1 calendar month. Example: May 5th to June 5th.
- Recurring Fees = those fees set forth on the Service Order that are due on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
- Renewal Term = the subsequent renewal of the Initial Term or any Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service Contract period set forth on the Service Order.
- Service Commencement Date = that date upon which you are given access by Host to begin using the Services.
- Service Level Agreement = ServerGuy Service Level Agreement as such agreement may be amended from time to time by Host.
- Acceptable Use Policy or AUP = ServerGuy Acceptable Use Policy as such policy may be amended from time to time by Host.
- Services = those services requested by you and provided by Host as set forth on a Service Order.
- Setup Fees = means those fees set forth on the Service Order that are due upon the Service Commencement Date and represent the initial fees necessary to initially setup and configure the Services.
- Support = means the telephone and online technical support provided by Host in connection with the Services.
- Service Order = means the agreement of Host to provide a service or services to You for a fee. This may take the form of a pre-defined ‘service plan’ offered by Host, or a any fee based service defined and agreed to by both parties via email or support ticket.
- Host has the right to monitor the Website, and in its sole discretion to remove any content that Host finds objectionable for any reason, without prior notice to Owner. This includes but is not limited to: Pornography, Spamming, Phishing Scams, Illegal business practices, any material infringing on National or International Copyright.
- Website Owner is solely responsible for any liability arising out of or related to the Web Site. Owner agrees to indemnify and hold Host harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees and experts’ fees, associated with any claim or action brought against Host related to or arising out of the Web Site or Owner’s breach of its warranties under this Agreement.
- Host owns and retains full rights to any code/programs or software developed by Host.
- You own all the content you placed into the website product or service, assuming it was original and does not infringe on existing copyrights.
- Any software used in website product or service released under the General Public License (GPL) is governed by such.
- Host reserves the right to modify and/or change these terms and conditions at any time.
- Confidential Information means all confidential and proprietary information of a party disclosed either before or after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party’s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business.
Subject to your compliance with all of the terms and conditions of this Agreement, Host shall provide the Services and Support to you during the term of this Agreement in accordance with the commitments made in the Service Level Agreement. In the event of a failure by Host to meet the obligations defined within the SLA, your sole and exclusive remedy and Host’s sole obligation are the issuances of Service Credits as set forth in the Service Level Agreement.
You are solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services by a User. You agree to fully comply with all of the obligations and restrictions set forth in the Acceptable Use Policy. You agree to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due and comply with any and all laws applicable to your use of the Services. You shall cooperate with Host’s investigation of service outages, security issues or any suspected breach of the terms and conditions of this Agreement.
Client Roster & Client Trademark usage
By using this service you grant host permission and a royalty-free license to list or display applicable trademarked name(s) and logo in Host’s client roster. This license will terminate upon the end of the ‘Term’ as described below. This permission does not extend to any form of advertising or marketing performed by or on behalf of Host.
Your initial invoice will include any Setup Fees and the Recurring Fees from the Service Commencement Date until expiration of the Recurrence Period. Thereafter, Host will invoice you in advance for the Recurring Fees and in arrears for the Non-Recurring Fees at the beginning of each Recurrence Period.
The Recurring Fees set forth in the Service Order shall remain fixed during the Initial Term. Upon commencement of any Renewal Term, the Recurring Fees for the Services shall be adjusted to the published fees then in-effect at the date of such renewal.
Payment terms are ‘due on receipt’.
You shall be responsible for and shall pay, and shall reimburse Host on request if Host is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on Host’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services.
You must notify Host in writing of any disputed Fees within fourteen (14) days of the invoice date for such Fees. If you do not notify Host within such period, you have waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to Host.
Suspension of Services
You acknowledge and agree that Host may suspend providing the Services to you, in whole or in part, without liability if (i) you fail to pay the Fees due to Host for a period of seven (7) days after the date of the invoice, (ii) you are in violation of the Acceptable Use Policy, (iii) you fail to reasonably cooperate with Host’s investigation of any suspected breaches of this Agreement, (iv) Host reasonably believes that the servers hosting the Services have been accessed or manipulated by a third party without your or Host’s consent, (v) Host reasonably believes that suspension of the Services is necessary to protect the Host environment generally, or (vi) Host is obligated to suspend Services via subpoena, court order or otherwise as required by law. In the event of any suspension of Service pursuant to abovementioned reasons, you shall pay Host full payment of the balance due on the account, including late payment interest, if any.
IN THE EVENT HOST TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude Host from pursuing other remedies available by statute or otherwise permitted by law.
The “Term” will refer to the time period between the Service Commencement Date, and the date your service is terminated. Commonly referred to as “No Contract”, services are offered on a cancel anytime basis.
You may cancel service by opening a ticket through http://client.serverguy.com at least 7 days but not more than 30 days before the end of services billing cycle. Your service will cancel/terminate within 3-4 days after following this procedure. This will allow you some time to gather your files and transfer your service before the site is removed from our system.
For plans using monthly billing, Host maintains a policy of no refunds. Due to the month-to-month, cancel anytime nature of this agreement Host shall not be compelled to issue a refund, pro-rated or otherwise for any reason. Host reserves the right to issue a refund on a case-by-case basis at Host’s sole discretion.
For plans using annual billing, Host maintains a policy of pro-rated refunds for the unused portion at time of cancellation. For example, if you prepay one year to get the 15% discount and cancel at month 6, you will be refunded 6 months worth at the discounted rate you prepaid.
Termination for Breach
Without limiting Host’s rights to suspend the Services, Host may terminate this Agreement in the event of a material breach by you upon no less than seven (7) days prior written notice and opportunity to cure such material breach. Notwithstanding the foregoing, Host may terminate this Agreement immediately if you violate the Acceptable Use Policy, whether or not you subsequently cure such violation.
Expiration of termination of this Agreement shall not relieve your requirement to pay Fees for Services provided prior to the effective date of termination.
Changes to Service
Any changes to the Services during the Term of this Agreement will result in a new Service Order and new agreement. Any unused payments under this Agreement shall be credited toward the new agreement.
Host may from time to time conduct routine tests, maintenance, upgrade or repair any part of the network, and Host shall use commercially reasonable efforts to give you prior notice thereof. You acknowledge that there may be instances where it is not practicable for Host to give advance notice of a disruption, for example, in the event of an emergency, and Host shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.
Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
Host represents that it shall provide the Services in compliance with its Service Level Agreement. EXCEPT FOR THIS WARRANTY, Host AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Host SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, Host MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WHICH THE SERVICES ARE PROVIDED. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT YOUR SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
Limitation of Liability
EXCEPT FOR HOST’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, HOST’S AND ITS LICENSOR’S CUMULATIVE LIABILITY TO YOU AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRO-RATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, Host SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.
HOST AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES, EVEN IF Host HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL Host ASSUME ANY LIABILITY OR RESPONSIBILITY TO YOU FOR SUSPENSION OF SERVICE TO THE EXTENT PERMITTED BY THIS AGREEMENT.
Host shall defend, indemnify and hold you, your affiliates or any of your or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) Host’s gross negligence or willful misconduct or (ii) a claim that the Services as provided by Host under this Agreement infringe upon the United States patent or copyright of a third party; provided that (a) you give Host prompt written notice of the claim, (b) you permit Host sole control over the defense and settlement of the claim and (c) you reasonably cooperate with Host in the defense and or settlement of the claim.
You shall defend, indemnify and hold Host, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your violation of the Acceptable Use Policy or the law; provided that (a) Host gives you prompt written notice of the claim, (b) Host permits you sole control over the defense and settlement of the claim and (c) Host reasonably cooperates with you in the defense and or settlement of the claim. Your obligation under this Section include claims arising out of acts or omissions by your employees, Users and any other person who gains access to the Services as a result of your failure to use reasonable security measures.
Ownership of Intellectual Property; Software; Hardware and IP Addresses
Each of us shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to you shall be the sole and exclusive property of Host and/or its licensors, unless we specifically agree in writing otherwise.
You acknowledge and agree that you do not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, we do not acquire any ownership interest in the content or data that you store on the servers or transmit via the Services.
You acknowledge and agree that third party software and hardware are used in the provision of Services. Accordingly, you agree to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
You acknowledge and agree that any IP addresses that Host may assign to you in connection with the Services are registered to and owed by Host and upon any expiration or termination of this Agreement, you agree to release and cease using any such IP addresses.
Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of Host without the prior written consent of Host.
Force Majeure. Host shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
Notice of Claim and Filing of Suit. You must present any claim in writing to Host within a reasonable time , and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against Host under this Agreement, unless timely written claim has been given as provided above.
Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the address set forth on the Service Order. Notices to Host shall be sent to ServerGuy.com(c/o Mantra Ventures, Inc.), 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, Attn: Legal. Either party may change their notices address by written notice to the other party.
Modification; Authority; Assignment. Without limiting Host’s rights to modify the Acceptable Use Policy or Service Level Agreement as set forth therein, Host may modify any aspect of this Agreement without prior notice. Should you wish to terminate this Agreement as a result of such modification, you are free to do so.
You acknowledge that you have the authority to enter into this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds any of your authorized users, as well as your heirs, executors, successors, and assigns.
This Agreement may not be assigned by you without the prior written consent of Host, which shall not be unreasonably withheld or delayed.
Governing Law; Jurisdiction. This Agreement is governed by the laws of New Delhi, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the state courts of New Delhi; provided, however, that Host shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce Host’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.