Terms of Service (TOS)
This TheServerDoctor Terms of Service (this "Agreement") and
the TheServerDoctor Acceptable Use Policy
("AUP") govern your purchase and use of all TheServerDoctor services
(collectively, the "Services"), as described in the Order Form(s) submitted by
you and accepted by TheServerDoctor ("Service Order"). Acceptance of any terms or
conditions different from those contained herein by TheServerDoctor will not be
deemed by provision of service, but only by electronic or written signature of
an officer of TheServerDoctor. You must register and accept the terms of this
Agreement and the AUP in order to use the Services.
BY CLICKING ON THE "I
ACCEPT" BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP, AND AGREE TO BE BOUND
BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND
GUIDELINES OF THE AUP, WHICH ARE INCORPORATED HEREIN BY
REFERENCE.
TheServerDoctor may modify any of the terms and conditions
contained in this Agreement and the AUP, at any time, in its sole
discretion. Any modifications are effective upon posting of the
revisions on the TheServerDoctor web site (the "Site"). Your continued
use of the Services following TheServerDoctor posting of any
modifications constitutes your acceptance of the modifications. If you
do not agree to the terms of any modification, do not continue to use
the services and immediately notify TheServerDoctor of your termination
of this Agreement in the manner described in the section below.
TheServerDoctor agrees to furnish services to the Subscriber, subject
to the following TOS (Terms of Service).
The use of TheServerDoctor service
constitutes acceptance and agreement to TheServerDoctor AUP as well as TheServerDoctor
TOS (Terms of Service).
Term and Payment for Services
Term:
This Agreement will be for an initial "Term" of 1 month from the date the
Services are first provided by TheServerDoctor. This Agreement will be
automatically renewed (the "Renewal Term") at the end of the Initial Term or any
Renewal Term for a period of thirty (30) days unless you provide TheServerDoctor
with written notice of termination at least ten days (10) before the end of the
Initial Term or Renewal Term (also referred to interchangeably and collectively
as "Term"), whichever is then applicable. To provide your notice of termination,
you must submit a ticket to the Billing department via
https://TheServerDoctor.com/billing and fill out the corresponding
cancellation
form to initiate the cancellation of your service. Pricing and duration of Terms
may be modified only if in writing (such as a Service Order) signed by TheServerDoctor.
Termination
This Agreement may be terminated: (i) by you or TheServerDoctor during
any Renewal Term, without cause, by giving the other party no less than
five (5) days prior written notice, or a greater number of days prior
notice if specified in a Service Order accepted by TheServerDoctor;
(ii) by TheServerDoctor in the event of nonpayment by you as provided
in the section below or (iii) by TheServerDoctor, at any time, without
notice, if, in TheServerDoctor sole judgment, you are in violation of
any terms or conditions of the AUP. If you terminate this Agreement, or
if TheServerDoctor terminates this Agreement for your breach, before
the end of the Initial Term or the Renewal Term, whichever is then
applicable, you will be required to pay immediately and without setoff
or delay all charges, fees and costs accrued before the termination
date, all monthly recurring fees for each month remaining in the Term
and any other amounts including, but not limited to, bandwidth overage
charges that you owe to TheServerDoctor under this Agreement.
Charges
You will immediately pay, upon receiving an
electronic invoice from TheServerDoctor, all charges for your use of the Services
at the then current TheServerDoctor prices for that category of service or any
special offer applicable to your account as determined by TheServerDoctor. You are
responsible for paying all federal, state, and local sales, use, value added,
excise duty and any other taxes assessed with respect to the Services, other
than taxes based on TheServerDoctor net income. If you default on any of your
obligations under this Agreement and TheServerDoctor must engage a collections
effort to collect past due sums associated with your use of Services, you are
responsible for all costs of collection of all amounts owed under this
Agreement, including reasonable attorney's fees of TheServerDoctor.
Your
Order Form specifies either a capped-unmetered rate, or a bandwidth usage
amount. This represents the amount of bandwidth that your account is provided,
or are allowed to use for each calendar month. For burstable and bandwidth
limited accounts, if you exceed this allotment for any reason in any calendar
month, even if you have cancelled service with TheServerDoctor during the month,
you will be charged overage bandwidth at a rate of $.50 per gigabyte. Bandwidth
billing is done in arrears, and you will receive your bill for overage bandwidth
during the first week of the following month that the overage occurred. It is
your responsibility to monitor your bandwidth usage and to pay for all overages.
If you are a reseller, it is your responsibility to monitor the bandwidth usage
of your client(s) as you are solely responsible for any and all overages
incurred by them.
Payment and Fees
You will pay all charges for the first month of service in advance on
the first day of the Initial Term. You will pay all subsequent charges
for Services in their entirety in advance on the anniversary day of
each successive month. You must pay for the Services by credit card.
You authorize TheServerDoctor to charge your credit or debit card to
pay for any charges that may apply to your account. You have a specific
obligation to immediately notify TheServerDoctor of any changes to your
card account (including applicable account number or cancellation or
expiration of the account, your billing address, or any information
that may prohibit TheServerDoctor from properly charging your account).
Failure to immediately and fully pay your fees for Services and
applicable taxes when invoiced by TheServerDoctor shall be a material
breach of this Agreement, justifying TheServerDoctor to suspend its
performance and terminate this Agreement. If TheServerDoctor terminates
this Agreement for your material breach, you will be required to pay
immediately all fees and costs accrued before the termination date, and
any other amounts you owe to TheServerDoctor under this Agreement
including, but not limited to, bandwidth overage charges. You are
responsible for any costs that TheServerDoctor incurs in enforcing
collection, including reasonable attorneys' fees, court costs and
collection agency fees.
Credit cards that are declined for any reason when Services are
invoiced are subject to an additional processing fee. Service will be
immediately interrupted on any account that is unpaid. Service interrupted for
non-payment is subject to a $25 suspension charge. Accounts not paid by the due
date are subject to a 10% late fee that accrues daily until paid in full.
Accounts that are not collectable by TheServerDoctor may be turned over to an
outside collection agency for collection. If you account is turned over for
collection, you agree to pay the company an additional "Collection" fee of not
less than $50 nor more than $150. If you desire to cancel the account, please
follow the correct procedure to do this at https://TheServerDoctor.com/billing
Refund
and Disputes
*All payments to TheServerDoctor are nonrefundable* and
include any applicable setup fees and subsequent charges regardless of usage.
All overcharges or billing disputes must be reported within 60 days of the time
that the dispute occurred. If you dispute a charge to your credit card issuer
that, in TheServerDoctor sole discretion, is a valid charge under the provisions of
this Agreement and/or AUP, you agree to pay TheServerDoctor an additional
"Investigation Fee" of $100.00.
Failure to Pay
TheServerDoctor may temporarily deny service or terminate this Agreement upon the failure of
Subscriber to pay charges when due. Such termination or denial will not, in any
way, relieve the Subscriber of responsibility for the payment of all accrued
charges, plus reasonable interest and all collection fees, including legal
expenses.
Use of Services
Services: The AUP is posted on
the site at http://TheServerDoctor.com/aup.php and may
be updated from time to time. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY
THE TERMS OF THE AUP AND ANY MODIFICATIONS TO THE TERMS. TheServerDoctor MAY
TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AUP OR THIS
AGREEMENT.
Security: You are solely responsible for any security breaches
affecting servers or accounts under your control. If your server is responsible
for or involved in an attack on or unauthorized access into another server or
system, TheServerDoctor will shut it down immediately. You will pay any charges
resulting from the cost to correct security breaches affecting TheServerDoctor or
any of its other customers.
System and Network
Security
Users are prohibited from violating or attempting to violate
the security of the TheServerDoctor proprietary network. Violations of system or
network security may result in civil or criminal liability. TheServerDoctor will
investigate occurrences which may involve, and cooperate with law enforcement
authorities in prosecuting Users who are involved in such violations. These
violations include, without limitation:
- Accessing data not intended for such user or logging into a server or
account, which such user is not authorized to access.
- Attempting to probe, scan or test the vulnerability of a system or network
or to breach security or authentication measures without proper authorization.
- Attempting to interfere with service to any user, host or network, including
without limitation, via means of overloading, flooding, mail bombing or
crashing.
- Forging any TCP/IP packet header or any part of the header information in
any e-mail or newsgroup posting.
- Taking any action in order to obtain services which such user is not
entitled.
Notification of Violations or Infractions
TheServerDoctor is under no
duty to look at each client's or user's activities to determine if a violation
of the AUP has occurred, nor do we assume any responsibility through our AUP to
monitor or police Internet related activities.
Violations of the AUP will
result in the following:
A warning notification sent via email, TheServerDoctor trouble ticket with 24 hours notice for resolution:
24 hours is the standard notification; situations involving law enforcement,
phishing scams, fraud, password harvesting, network interference, Denial or
Disruption of service, IRC related misuse, or other malicious activity can
reduce the notification time frame. At the sole discretion of TheServerDoctor
staff, your service may be disabled at any time without prior email to stop any
abuse in progress.
- First Violation: Any user, which TheServerDoctor determines to have violated
any element of our AUP shall receive an e-mail warning them of the violation.
The service may be subject at TheServerDoctor discretion to a temporary suspension
pending a client's agreement in writing to refrain from any further violations.
- Second Violation: Any client that TheServerDoctor determines to have committed
a second violation of any element or portion of the AUP shall be subject to
immediate suspension or termination of service without further notice.
- We reserve the right to drop the section of IP space involved in any SPAM or
Denial-of-Service (Dos) complaints if it is clear that the offending activity is
causing great harm to parties on the Internet. In particular, if open relays are
on your network or a customer's network, or if denial-of-service attacks are
originating from your network. In certain rare cases, we may have to take this
action prior to attempting to contact you.
Disclosure to Law Enforcement
The AUP specifically prohibits the
use of our service for illegal activities. Therefore, Subscriber agrees that the
Company may disclose any and all Subscriber information, including assigned IP
addresses, account history, account use, etc. to any law enforcement agency who
makes a written request without further consent or notification to the
Subscriber. In addition TheServerDoctor shall have the right to terminate all
service set forth in this Agreement if requested to do so as a result of any
action of any law enforcement or government agency.
Support Services
and Boundaries
TheServerDoctor provides 24/7/365 technical support to our
Subscribers. We limit our technical support to our area of expertise. The
following are our guidelines when providing support:
- TheServerDoctor provides support related to your server. TheServerDoctor does not
provide support for application specific issues, such as any programming, HTML,
third party applications or any other such issue.
- TheServerDoctor does not provide technical support for YOUR clients.
We encourage you to check our FAQs at http://TheServerDoctor.com/faq first.
Reseller Policy
Resellers are completely and entirely
responsible for the conduct of their customers and by agreeing with this AUP,
Resellers agree that their customers will adhere to the AUP. Resellers have an
obligation under this Agreement to make their current and prospective customers
aware of the AUP and the consequences of violation of
same.
Intellectual Property Rights
Your Warranties and Representations to TheServerDoctor: You warrant,
represent, and covenant to TheServerDoctor that: (a) you are at least
18 years of age if an individual; (b) you possess the legal right and
ability to enter into this Agreement; (c) you will use the Services
only for lawful purposes and in accordance with this Agreement and all
applicable policies and guidelines, including the AUP; and (d) your
content does not and will not infringe or violate any right of any
third party (including any intellectual property rights) or violate any
applicable law, regulation or ordinance.
Intellectual Property
Policy
TheServerDoctor respects the intellectual property rights of others
and expects its users to do the same. TheServerDoctor reserves the right, at its
discretion, to delete material that infringes the copyrights, trademarks, or
other intellectual property rights of others. TheServerDoctor also reserves the
right to disable and/or terminate the accounts of users who infringe the
copyrights, trademarks or other intellectual property rights of others.
IP Addresses
TheServerDoctor will maintain and control ownership of
all Internet Protocol ("IP") numbers and addresses that TheServerDoctor may assign
to you. TheServerDoctor may, in its sole discretion, change or remove any and all
IP numbers and addresses at any time.
Third Party
Products
TheServerDoctor may provide you with access to other third party
software and/or services ("Third Party Products") through reseller
relationships that TheServerDoctor has established with certain
commercial vendors, including without limitation, Microsoft Corporation
("Third Party Vendors"). Unless otherwise notified, Customer
understands that product support for Third Party Products is provided
by TheServerDoctor and not by the Third Party Vendor. Neither
TheServerDoctor nor any Third Party Vendor makes any representations or
warranties, expressed or implied, regarding any Third Party Products.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY
PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE
PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND
FROM TheServerDoctor OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF
RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, NEITHER TheServerDoctor NOR ANY THIRD PARTY VENDOR
WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT,
OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD
PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE
AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY
PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS
AND TheServerDoctor WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD
PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR
APPLICABLE END USER SUBSCRIBER AGREEMENTS.
You shall not (i) remove, modify or obscure any copyright,
trademark or other proprietary rights notices that appear on any Third Party
Product or that appear during use of any Third Party Product; or (ii) reverse
engineer, decompile, or disassemble any Third Party Product, except and only to
the extent that such activity is expressly permitted by applicable law
notwithstanding this limitation.
Enforcement
Actions
TheServerDoctor reserves the right to suspend or terminate the
Service immediately or take any other corrective action it deems
appropriate in its sole discretion if, in the sole judgment of
TheServerDoctor, your server is the source or target of any violation
of the AUP or for any other reason which TheServerDoctor reasonably
chooses. If inappropriate activity is detected, all of your accounts in
question will be deactivated until a thorough investigation is
completed. Prior notification to you of disconnection is not assured.
In some cases, law enforcement will be contacted regarding the
activity. These rights of action, however, do not obligate
TheServerDoctor to monitor or exert editorial control over the
information made available for distribution via the Services. If
TheServerDoctor takes corrective action because of a possible
violation, TheServerDoctor will not refund you any fees that you paid
in advance of the corrective action.
Disclosure Rights
The AUP specifically
prohibits the use of our service for illegal activities. Therefore, you agree
that TheServerDoctor may disclose any and all of your information including
assigned IP numbers, account history, account use, etc. to any law enforcement
agent who makes a written request without further consent or notification to
you. In addition, TheServerDoctor shall have the right to terminate all service set
forth in this Agreement.
Disclaimed Warranties
TheServerDoctor exercises no control over, and accepts no responsibility for, the content of the
information passing through TheServerDoctor host computers, network hubs and points
of presence, or the Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE
OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS
AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF
PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION
SYSTEMS. TheServerDoctor DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE
ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING
THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE
OF PERFORMANCE OR USAGE IN TRADE. TheServerDoctor DOES NOT WARRANT THAT THE
SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE.
Limitation and Exclusion of
Liability
Limitations
IN NO EVENT WILL TheServerDoctor OR ITS
SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR
DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA
THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER TheServerDoctor
NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO TheServerDoctor' OBLIGATIONS
UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF TheServerDoctor HAS BEEN ADVISED OF THE
POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF TheServerDoctor AND ITS SUPPLIERS TO
YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU
ACTUALLY PAID TO TheServerDoctor UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS. THE FEES FOR THE SERVICES SET BY TheServerDoctor UNDER THIS AGREEMENT HAVE
BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY,
YOU RELEASE TheServerDoctor AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS,
LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION.
Interruption of Service
TheServerDoctor and its suppliers
are not liable for any temporary delay, outages or interruptions of the
Services. Further, TheServerDoctor is not liable for any delay or failure to
perform its obligations under this Agreement, where the delay or failure results
from any "act of God" or other cause beyond its reasonable control (including
any mechanical, electronic, communications or third-party supplier
failure).
Indemnification
In agreeing to the TheServerDoctor AUP and this Agreement, you agree to
indemnify, defend and hold harmless TheServerDoctor, its employees,
officers, directors, partners, representatives and affiliates, for any
violation by you or your customers of the AUP or this Agreement that
results either in (a) any cost, expense, damage or loss to
TheServerDoctor, or (b) the bringing of any claim against
TheServerDoctor by any third-party, and all costs, expenses, damages,
and losses associated therewith. For example, if TheServerDoctor is
sued because of your or your customer's activity related to the
Services, you will pay any damages awarded against TheServerDoctor, its
employees, directors, partners, representatives and affiliates, in
addition to all costs and attorney's fees.
MISCELLANEOUS
PROVISIONS
TheServerDoctor and you agree that, except as otherwise expressly
provided in this Agreement, the Order Form(s) or the terms and conditions of use
of any third party software products, there shall be no third party
beneficiaries to this Agreement, including but not limited to the insurance
providers for either party or your customers. THIS AGREEMENT IS MADE UNDER AND
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
Vermont (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY
EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED
NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL
DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND
FEDERAL COURTS IN Vermont, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL
JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of
this Agreement is held by a tribunal of competent jurisdiction to be contrary to
the law, the remaining provisions of this Agreement will remain in full force
and effect. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party. You may not sell, assign or
transfer its rights or delegate its duties under this Agreement either in whole
or in part without the prior written consent of TheServerDoctor, and any attempted
assignment or delegation without such consent will be void. TheServerDoctor may
assign this Agreement in whole or part. TheServerDoctor also may delegate the
performance of certain Services to third parties. All notices, demands, requests
or other communications required or permitted under this Agreement shall be
deemed given when delivered personally, sent by facsimile upon confirmation,
sent and received by return receipt email, or upon receipt of delivery of
overnight mail. You and TheServerDoctor are independent contractors and this
Agreement will not establish any relationship of partnership, joint venture,
employment, franchise or agency between you and TheServerDoctor. This Agreement,
including all documents incorporated herein by reference, constitutes the
complete and exclusive agreement between the parties with respect to the subject
matter hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter.
Survival
All provisions of this
Agreement relating to your warranties, intellectual property rights, limitation
and exclusion of liability, your indemnification obligations and payment
obligations will survive the termination or expiration of the Agreement.
