This legally binding contract (the “Agreement”) is by and between Tweakservers.com, and you and your assigns, employees, agents or contractors (“You”, “Your”, the “Client”) and is effective as of the date you purchase dedicated hosting services from Tweakservers.com. This Agreement sets forth the terms and conditions of Your use of Tweakservers.com’s Dedicated Server services (collectively, the “Services”) and represents the entire agreement between You and Tweakservers.com relating to the Services. This Agreement contains provisions that set forth Tweakservers.com’s Acceptable Use Policy, Privacy Policy and guarantees of a certain service level (found in the “Uptime Guarantee” and “Service Level” sections below).
By purchasing the Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that Tweakservers.com may establish and post on its website from time to time.
Description of Services
Tweakservers.com provides the Services to its customers for a monthly fee.Tweakservers.com will provide You an account on one or more of its dedicated servers, provided, however, You abide by the terms and conditions set forth in this Agreement and in any other agreement pertaining to other services you may purchase. Tweakservers.com reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. Tweakservers.com shall use reasonable efforts to notify You in advance of any planned changes to Tweakservers.com’s network or facilities that may adversely affect the Services provided under this Agreement.
Server Administration Services
Tweakservers.com shall, during the Term (as defined below) provide to the Customer server/computer administration services described below (the “Server Admin Services”), at such times as Customer may reasonably request.
Server Admin Services include, but are not limited to:
Install patches, fixes, and updates to operating system and/or servers; install additional software packages to the operating system and/or server; install patches, fixes, and upgrades to additional packages.
Provide Customer with adequate protection (as outlined in service description) and safeguard Customer against virus, Trojan, spyware, DDOS, (the “Protections”) or any other unauthorized intrusion.
Provide all additional services out outlined in specific plan description.
Limitations of Server Admin Services.
Liaising with billing and/or accounting matters related to payment for software, licenses, Services or other items unless directly provided by or acquired for Customer by Tweakservers.com.
Fixing errors and omissions contained in any third-party source outside the direct control of Tweakservers.com, unless otherwise specified.
Fees
Fees for Services ordered by You shall be charged beginning on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each month.
From time to time it may be necessary to make adjustments in the fees and surcharges charged for the Services in order to cover certain changing costs (e.g., power) incurred by Tweakservers.com in providing the services. Such adjustments will be reflected on the statement or invoice provided to you for the Services, and you agree to pay for the fees and surcharges for the Services, as adjusted.
Payment Options
Tweakservers.com provides several options for payment:
- Credit Card on File. When you place a credit card on file with Tweakservers.com, we will, typically, bill the card a few days before your invoice is due. If the credit card charge is expired, not authorized or declined by our processing company, we will notify you via E-mail. We request that you update your card promptly. If your invoice becomes more than 3-days past due (from the invoice Due Date) then Tweakservers.com reserves the right to suspend service or terminate service after 5 days past due until payment is received.
- PayPal payments. Tweakservers.com accept payment via PayPal. All payment made via PayPal should be send to paypal@tweakservers.com. In the event Your invoice is 3-days or more past due (from the invoice Due Date) then Tweakservers.com reserves the right to suspend service or terminate service after 5 days past due until payment is received.
Late Payment
Tweakservers.com reserves the right to charge a late fee of $20 per invoice per month on late payments. Invoices will be automatically considered late once the invoice due date has passed.
Non-payment Termination
In the event you fail to pay your invoice within 3 days of the due date, we reserve the right to suspend your service.
If you are still past due on the 5th day from the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.
If you are terminated for non-payment, we also reserve the right to refer your account to a third party collection agency and you agree to pay any collection fees or legal fees we may be charged to collect on your debt.
Cancellation and Refunds
Tweakservers.com is not able to schedule cancellation for a specific time or date. To submit a cancellation request, please send an email to billing@tweakservers.com. When you request cancellation, we will follow this process: We will first contact you to confirm the cancellation and verify that you are authorized under your account to cancel it. Then, we will immediately suspend billing and cancel the server. We are not able to provide scheduled cancellations and all cancellations are effective immediately. Regarding mid-month or mid-period cancellations, Tweakservers.com will not issue pro-rated refunds for cancellations received in the middle of a payment cycle.
Refunds will not be given on a pro-rated basis for Services provided in a given billing period. Receipt by you of any Services in a given period will obligate you to pay for the Services during that entire billing period.
Term and Termination and Money Back Guarantee
You agree to a month to month term for the Services unless otherwise agreed to in writing. The month to month term for services is automatically renewed each month unless either party notifies the other in writing of its desire that the Agreement not be renewed, no later than three (5) days before the next upcoming anniversary date for billing. You may cancel Your account by terminating this Agreement in this manner by contacting the Tweakservers.com billing department at billing@tweakservers.com
Tweakservers.com may terminate this Agreement effective immediately and without notice upon any breach by You of any of the terms of this Agreement. In such event, Tweakservers.com shall have no obligation to refund any fees paid in advance by You.
At this time, Tweakservers.com does not offer a refund-based MBG of any kind.
Chargebacks and Payment Disputes
Under this Terms of Service agreement you must first contact Tweakservers.com to attempt to resolve any billing disputes before contacting your bank or credit card company to dispute the charges. You further agree that any billing disputes must be submitted in writing to our billing department within one month of the invoice payment in question.
By using our services You agree to the above policy and to contact Tweakservers.com before contacting your financial institution to seek a resolution.
In the event you dispute charges contrary to this agreement, we reserve the right to add a $200 collection chargeback fee and to refer your account or sell your debt to a third party collection agency. We also reserve the right to take further legal action against you.
Tortuous Conduct
Any abuse towards any Tweakservers.com employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner, when emailing, or submitting online tickets to Tweakservers.com. Any cursing, yelling, or further intentional disruptive behavior aimed at Tweakservers.com or its employees shall be considered a violation of this Terms of Service agreement.
Any threat; whether orally, verbally, in written, via E-mail, delivered by second parties or delivered in any other way, and directed towards Tweakservers.com or any of Tweakservers.com’s employees, partners, staff, contractors, sub-contractors, facilities, offices, etc. shall be construed as a violation of this Terms of Service agreement. Threats of physical violence will be directed to the proper authorities.
No refunds shall be given when the above Tortuous Conduct clause is violation and necessitates the termination of an account or services.
License to Host
You hereby grant to Tweakservers.com a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary to provide the Services under this Agreement: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by You; and (b) make archival or backup copies of content uploaded by You to the Tweakservers.com servers. Tweakservers.com shall have the right, but not the obligation, to make backup copies of the data uploaded by You to the Tweakservers.com servers. You are responsible for any of your content residing on Tweakservers.com’s servers and for the backup thereof.
Storage and Security
At all times, You bear full risk of loss of any content and software you place on the Tweakservers.com servers. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.
Tweakservers.com does not undertake any obligation to provide management or security services unless you specifically request it to do so. If any technology specifically associated with your account requires updating, You must make a request for such update through Tweakservers.com’s ticketing system.
You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; and (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on Tweakservers.com servers. Tweakservers.com shall have no liability to You or any other person for loss, damage or destruction of any of Your content.
Uptime Guarantee
“Uptime” refers to the amount of time the Services are available, as measured solely and only by Tweakservers.com’s internal monitoring systems. “Downtime” refers to the amount of time the Services are unavailable, as measured solely and only by Tweakservers.com’s internal monitoring systems. Tweakservers.com guarantees that it’s Networking and Connectivity services will be available 100% of the time. In the event such level of service is not provided, Tweakservers.com will credit your account in an amount as determined in the chart below, reflecting credit percentages of the monthly fees paid by You to Tweakservers.com for the Services, but not payments made for any of the following products and services: software licenses, IP address charges, set up fees, shipping and handling, SSL certificate fees, labor charges, and other services which are unrelated to Uptime.
1. 100% will result in a credit of: 0%
2. 99.1% to 99.9% will result in a credit of: 5%
3. 98% to 99% will result in a credit of: 10%
4. 95% to 97.9% will result in a credit of: 25%
5. 90% to 94.9% will result in a credit of: 50%
6. 89% or below will result in a credit of: 100%
To receive a credit, You must make a request by sending an email message to billing@tweakservers.com. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers which experienced the Downtime. The request must be received by Tweakservers.com within seven (7) business days after the incident of Downtime. If the unavailability is confirmed by Tweakservers.com, credit will be applied to Your Tweakservers.com account within thirty (30) days of receipt of Your credit request.
The total amount credited to You in a particular month under this Agreement shall not exceed the total amount of fees paid by You for such month for the affected Services. Credits are exclusive of any applicable taxes charged to You or collected by Tweakservers.com and are Your sole and exclusive remedy with respect to any Downtime.
The provisions of the Agreement pertaining to Force Majerue are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by Tweakservers.com to provide credit to You:
1. emergency maintenance
2. scheduled maintenance
3. system upgrades
4. domain name system (DNS) problems outside of Tweakservers.com’s control
5. issues with FTP, POP, IMAP, or SMTP customer access
6. Acts or omissions by You or any of Your employees or agents, resulting in downtime
7. Any negligence, willful misconduct, or use of the services in breach of Tweakservers.com’s Acceptable Use Policy
8. Problems with users’ web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the Tweakservers.com servers.
Hardware Replacement Guarantee
Tweakservers.com strives to maintain the integrity of the hardware used to provide its services, and any Downtime caused by hardware failure shall be credited pursuant to this Agreement. Tweakservers.com maintains a stock of all essential hardware necessary to provide the Services. Tweakservers.com shall replace any and all substantially malfunctioning hardware within 1 hour of Tweakservers.com becoming aware of such substantial malfunction.
The amount of time for replacement of hardware shall be measured from the moment that Tweakservers.com determines that the hardware must be replaced, and does not include time spent diagnosing the problem, researching other solutions, investigating the cause of the failure or time spent installing software, restoring backups or other, similar situations.
In the event that Tweakservers.com fails to meet this hardware replacement guarantee, Tweakservers.com will issue, to You, account credits in the amount of 10% of the base monthly server rent for each hour after the first hour of the monthly service fee for the server in question to a maximum of 50% of the cost of the server itself (excluding any management, upgrades or additional services associated with the server in question.)
To receive a credit, You must make a request by sending an email message to billing@tweakservers.com. Each request in connection with this Agreement must include the dates and times of the hardware replacement situation, the name and IP address of the server or servers which experienced delayed replacement. The request must be received by Tweakservers.com within seven (7) business days after the incident. Upon confirmation by Tweakservers.com, credit will be applied to Your Tweakservers.com account within thirty (30) days of receipt of Your credit request.
Acceptable Use
You agree not to use the Services to:
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
administer IRC;
harm minors in any way;
impersonate any person or entity;
“stalk” or otherwise harass another person;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
upload, post, email, transmit or otherwise make available any Content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or “pyramid schemes;”
upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or
collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the paragraphs above.
Disclaimer of Warranties
You acknowledge and agree that Tweakservers.com exercises no control over, and accepts no responsibility for, the content of the information passing through the host computers, network hubs and points of presence or the Internet. NEITHER TWEAKSERVERS.COM, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE 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 TWEAKSERVERS.COM PROVIDES. NEITHERTWEAKSERVERS.COM, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY 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. TWEAKSERVERS.COM IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CLIENTELE VIA THE SERVICES PROVIDED BY TWEAKSERVERS.COM.
Indemnification
You agree to indemnify, hold harmless, and defend Tweakservers.com and all directors, officers, employees, and agents of Tweakservers.com 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 legal fees) arising out of or relating to the use of the Services by You, including any violation of the Acceptable Use Policy set forth in this Agreemnet. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
Limitation of Liability
IN NO EVENT SHALL TWEAKSERVERS.COM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF TWEAKSERVERS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Tweakservers.com’s liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by You for the Services during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. The provisions of this Agreement pertaining to Uptime Guarantee apply to credits available to you for system downtime.
Tweakservers.com Utilization of Third Party Services
Tweakservers.com reserves the right, and You agree to pay for, services of third party consultants hired by Tweakservers.com in its discretion to assist Tweakservers.com in providing the Services to you. Fees for the services of third parties retained by Tweakservers.com will be charged to You in the invoice covering the period during which the third party services were utilized by Tweakservers.com.
Unsolicited E-mail Policy
“Unsolicited E-mail Complaint” is an occurrence of a third-party complaint regarding a specific E-mail communication message sent by You. “Unsolicited E-mail Incident” is an occurrence of a single E-mail message which may have been sent to multiple E-mail addresses. An Incident may contain numerous Complaints. Incidents may contain Complaints received up to 24 hours after the first. After 24 hours, a new Incident will be opened. “IP Black Listing” is an occurrence when a third party black listing service determines that a Tweakservers.com issued IP address is a frequent source of Unsolicited E-mail. Black Listings result in the IP address (or multiple IP addresses in the same “IP range”) are unable to send E-mail to certain third parties.
Tweakservers.com has designed this portion of this Agreement to comply with the United States CAN-SPAM Act (the “Act”.) The Act states that commercial E-mail must be solicited, an effective, visible and clearly defined un-subscription process be in place, that every E-mail message sent be sent from a valid address, without any form of IP or source spoofing, that every E-mail message sent contain the physical contact information of the sender, that every receipient of such E-mail messages has requested to receive such E-mails and that the messages and method in which they were sent comply with the other provisions of the United States CAN-SPAM Act.
Tweakservers.com considers any attempt to send Unsolicited E-mail Messages or other forms of Spam E-mail (including “Spamvertising” other websites or services or products) to be violations of this Agreement.
Upon any Complaints which are being received, Tweakservers.com will alert you and you are required to get back to Tweakservers.com within 24 Hours. If Tweakservers.com shall not receive any response from you within 24 hours of the alert sent, Tweakservers.com reserved the rights to suspend your service without any further notice. To help reduce the overall Unsolicited E-mail problem, Tweakserveres.com has put into place the following 3-Strike Policy: For every Unsolicited E-mail Incident, Tweakservers.com will assess a penalty of $35.00 per verified Incident and a penalty of $300 for the first instance of IP Black Listing and $450 for the second instance of IP Black Listing (collectively, the “Penalties”.) For each $35.00 Unsolicited E-mail Incident Penalty, you will be issued one strike. For your first IP Black Listing Incident, you will be issued one strike. For your second IP Black Listing Incident, you will be issued two strikes. On your third strike, Tweakservers.com reserves the right to terminate your service with or without warning. If your service is terminated under the Unsolicited E-mail Policy then you forfeit all fees paid, including pre-paid fees and unused time. All fees paid become non-refundable. Further, account termination does not absolve or nullify Penalty payments you may owe to Tweakservers.com. Further, you may accumulate additional Penalties based on complaints received after your termination. This section of the Agreement will survive for a period of one year after this agreement is terminated
