Terms of Service Agreement (Continued)
- Services Provided This TOS governs all Services provided by us. The particular description of the services we agree to provide to you are set out on our website, and incorporated by this reference (“Services”). We agree to provide the features of the Services as specified on our website (“Service Description Page”), and pursuant to this TOS. Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. You may not terminate this TOS based on such a change even if it is material.We reserve the right to change, modify, or alter the way the Services are provided, or various aspects of them. We will use commercially reasonable efforts to inform you of those changes. Other than for third party Services, you may terminate this TOS if such a change materially affects the Services. The term “material” shall have the same definition it is given in this TOS in the paragraph defining a party’s material breach.We provide no guarantee that the Service will be uninterrupted, or continuous, that you will be able to access the Services at a particular time, that any data transmitted by, or through, us is accurate, error free, virus free, secure, or inoffensive. You acknowledge that it is your responsibility to keep back-up copies of your data. We are not responsible for any loss of data, for any reason. In particular, “back up” services are provided only as a supplement to your own efforts. Because the structure of websites, databases and other technology differs, we can not, and do not guarantee that any back ups will capture all of the data provided to us for back up. We are not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system. We may at our discretion block or unblock IP addresses. We may also suspend or disable an account at any time for service maintenance.
- Hosting When your Web Hosting Services are set up, you will receive a username, password and other information related to your account. It is very important that you protect this information from unauthorized disclosure. It is your obligation to notify us if you have lost any of this information, or you believe there is unauthorized use of the Services. We cannot be responsible for any damages, extra charges or any other harm that occurs as a result of lost, stolen, or misplaced information of this sort.Your use of the Services must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. Your bandwidth use is set out on the respective Service Description Page. If it is not, you may not use more bandwidth than that of a similarly situated customer. You agree that we may place restrictions on your use of the Services to the extent that they exceed the use of the Services by similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services. Restrictions may be placed on your e-mail capacity. These restrictions may apply both to the amount of e-mail you may save, receive, and/or store. Should you exceed these restrictions, your account may be suspended, files compressed and transferred to another location, and/or deleted. E-mail accounts are not designed to function as permanent storage. We assume no responsibility for files that are damaged or inadvertently deleted.You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Services.We may use software and other techniques to protect our company from viruses, SPAM and other items that we, in our sole and exclusive judgment, believe may harm our business. On request, we will provide you with information about the operation of these devices. You can then determine whether they affect your use of the Services. However we are not responsible for any harm caused to you by these devices. In particular, we are not responsible for the failure to process e-mail that we have labeled as SPAM or as otherwise harmful to our network which is then discarded without your knowledge. For example we may gray list IP addresses, and e-mail from these addresses will be refused, and you will not receive it. E-mail may be monitored to enhance functionality of the Service and aggregate information may be collected. We own this data.If we provide free software bundled into the Services we assume no liability for the performance, or non-performance of this software. Your use of this software is at your own risk and you assume all liability for this use.
- Multiple Websites – Note that if you’re hosting more than one site on your account that’s fine as long as they’re all directly related to the same organization. If you’re hosting multiple websites for customers of yours, or for unrelated organizations or people, you need to open regular hosting accounts for them. The only exception to this is clients who have recognized reseller status.
- Domain Name Registration TLCWebHosting.com Inc. is a registration service provider for several domain name registrars. Applications processed through each respective registrar are also bound by the terms of that registrars’ Registration Agreement.When you provide information to us to register a domain name, the domain name is not immediately registered. You have presented us with an application to register a domain name (“Registration Application”). This Registration Application must be processed by us before it can be submitted for registration by the registrar. There are a number of cases in which your Registration Application may be denied, or the domain name fails to be registered. Examples of these include, but are not limited to: your failure to meet our credit or fraud standards; your failure to meet the registrar’ standards; registration of the domain name by another person during the period of time in which we, or the registrar, are processing the Registration Application; and/or your failure to pay the Fees. We are not responsible to you in any way, for a failure by us, or registrar, to register a domain name.When you submit your Registration Application you will be asked to supply us with contact and other information about yourself and or business/organization (“Registration Information”). You are required to provide us with accurate Registration Information, and update the Registration Information when it becomes inaccurate. We may ask you from time-to-time to verify the accuracy of the Registration Information. You are required to respond to our request within 15 calendar days. Your failure to respond, or provide us with accurate or updated Registration Information, is a material breach of this TOS. This material breach is a basis for the cancellation of your domain name. If your domain name is cancelled, you may lose any registration rights you previously held.It is your obligation to monitor the expiration date of your domain name. Domain name renewal services are provided as a courtesy to you. We assume no responsibility for domain names that lapse or which are not renewed. However, we will make every effort to automatically renew your domain prior to it’s expiry date if your account is in good standings.If your domain expires, you may request special order “Redemption” and “Rescue” services from us, through the registrar. You will not receive a refund for Redemption and Rescue services unless the registrar fails to process a redemption and/or rescue. Should the registrar fail to process a redemption and/or rescue, the registrar, and our, liability is limited to a refund of the price you paid for that service.If your domain name does not have valid name servers, or is expired, it may be Parked. The term “Parked” means that your domain name will point to a page that contains advertising that may be related to your domain. Any revenue received from a Parked domain is ours. You may request that we turn off advertising on a fully paid, unexpired, Parked domain.
- IP Addresses We may provide you with an IP address, or addresses. We retain ownership of these IP addresses and although it’s unlikely, may change them at any time. Should these addresses change, it is your responsibility and sole obligation to update your software and/or equipment to reflect this change. We have no responsibility or liability for the cost of such changes. Upon termination of this Agreement, you will not have the ability to transfer these addresses.
- Technical Support Our technical support is available for all current customers and is provided on an as-is, as available basis. If your request for technical support exceeds that of similarly situated customers, we may charge you additional support fees. We will inform you, and receive your consent, prior to charging you for technical support.In order to provide technical support, you agree that we may have full access to all aspects of the Services accessible to us based on your request. After we complete your request, you are solely responsible for any changes made to your account from that point forward.All support is provided as-is and is subject to the disclaimers of warranties and limitation of liability set out in this TOS. While we will use reasonable efforts to provide technical support to you and to perform any work you request in a timely and professional manner, we cannot guarantee the result you expect or that an issue might not occur again. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors. We may refuse to perform any request that requires changes not compatible with the Services or is not related to them or might create a security risk or endanger their performance.It is your obligation to perform and store a backup of your data and files prior to requesting technical support. In the event that you are not satisfied with the outcome of any technical support, it is your obligation to restore your files and data from your own backup.
- Support for third-party products and services We will make a “best effort” to try to draw on our knowledge and experience to help with third-party products and services used in conjunction with our Services. We do not guarantee that we will be able to provide any accurate or comprehensive solutions to problems with the plethora of third-party products and services used on the internet but we will try to help in any way we can.
- Backup Services We will use good faith efforts to backup data stored on the shared account once per day. Backups are intended for internal use only and we cannot guarantee that the backup will be available or without corruption for restoring upon your request. It is your responsibility to backup data of all your content, email, files, etc. within your account to prevent potential data loss even if you purchase backup services. Backup services are provided “as-is”. See “Warranties; Our Warranties”. Our only obligation is to restore your hosting space to its operating condition. While we may provide assistance, it is your obligation to restore your website.Each day we back up your account by compressing it into a single archive and placing it on a separate hard drive for safe keeping. Thus, if your account ever needs to be restored because files were lost, damaged or hacked, we can recover the entire account. Hard drives do fail on occasion, but because the primary drives are mirrored, it’s extremely rare that the primary drive would lose data, even if a hard drive fails. (However, the worst-case scenario can happen. Thus far it’s happened only once in our 17 years of hosting). So creating a back-up archive is extremely important. This archive is saved on site for 48 hours and then moved to an offsite storage facility, which protects against extreme disasters such as a natural disaster or human-caused catastrophe that might physically damage our data centers.
- Storage Limitations: All of these precautions take time and resources. Thus we have to balance the load so that some clients don’t draw resources away from others. Therefore, as of March 1, 2017, accounts using more than 10 GB of disk space are not backed up unless special arrangements are made.
- Provision of Backups: Backups are for internal use only. There are times when you may want to copy of the backup. The cost of the backup is the equivalent of $50 or 6 months worth of hosting, whichever is more. As stated above, backups are provided as-is with no warranty.
- Restoring Accounts: We will attempt to restore an account as many times as needed but will only provide 2 restores per 6-month period at no charge.
- Third Party Services Many of the provisions of this TOS incorporate provisions we are required to flow down to you by our third party vendors. However, the following provisions do not fit neatly within a particular category, and are set out here. Geotrust certificates:
Geotrust certificates may not be distributed in Japan. The information you supply to Geotrust for your certificate may be provided to third parties. Geotrust certificates incorporated by reference:
Tucows’ agreements incorporated by reference:
Domain name registration agreement: http://resellers.tucows.com/contracts/tld/exhibita
Enom’ agreements incorporated by reference:
Domain name registration agreement: https://www.enom.com/terms/agreement.asp
- Term For customers, and End Users, the term of this TOS begins when we initiate the service(s) requested by you or when payment is received from you, or your credit card payment is “approved” by your issuer (“Effective Date”), whichever is earlier. This TOS will begin on the Effective Date and continue for the term set out on the Service Description Page (“Initial Term”). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (“Renewal Term”). If the Service Description Page does not contain an Initial Term, the Initial Term shall be one month. Accounts are automatically renewed. You will have fifteen (15) days prior to renewal to cancel your account. Your notice should contain your domain name, user name, and password or last 4 digits of your credit card or the answer to the secret question on file, for verification purposes. If we do not receive a notice to cancel the renewal of your domain name and/or account, we will charge the account accordingly. If you have chosen to pay by credit card we will automatically debit that card. If you have chosen to pay by check, your payment is due when the notice is sent out.Should a renewal fee go unpaid, we will not turn over assets of the account until the account balance is paid. Payment must be made by credit card or such other method as we may indicate in the registration application or renewal form. We will renew the registration for the term specified provided your credit card or other billing information is available and up to date, unless you instruct us otherwise within the time specified. If your billing information is not accurate and you wish to renew the registration/account, you are responsible to contact us to update this information.
- Cancellation of your account:
- HOW TO CANCEL: You must use this Cancellation Form or go to our website, click on the Cancel Service link under Customer Service in our navigation bar. This form requires information that we use to verify that you have the authority to cancel the account. If you fail to give the correct information, we’ll need to have that corrected or we cannot close the account. We only accept cancellations in writing via the form above or postal mail, and will not cancel an account over the phone, or by email. It is important to note that if the Service Description Page contains a term commitment, you will be responsible for all termination charges based on your cancellation. The fact that you cancel service does not relieve you of responsibility for these charges. If you have a term agreement with us, we strongly suggest you contact us prior to canceling to determine what your cancellation obligations will be.
- REFUND POLICY: Accounts older than 30-days are not refundable. We send invoices 21 days prior do their due date. You must cancel an account prior to the due date or you will be billed and responsible for payment. Until you formally cancel your account, you are still responsible for all due invoices. We’re not mind readers, so repointing your domain to another service does not automatically cancel your account because there are valid reasons to have two accounts on two different servers. Domain name renewals are non-refundable. We may, at our option, make an exception and pro-rate your refund minus $10 to cover our merchant expenses and processing fees.
- Termination for cause – We reserve the right to immediately terminate this TOS, and suspend or cancel your services: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.
- Termination without cause – We may terminate this TOS by providing you with written notice no later than 25 days prior to the expiration of any Initial Term, Renewal Term, or month-to-month contract.
- Termination by you – You may terminate this TOS by providing us with written notice no later than 15 days prior to the expiration of any Initial Term, Renewal Term, or month-to-month contract.Your termination notice must be provided to us via the following two options and requires that you prove ownership of the account by providing either the user name and password to the account or the last 4 digits of the credit card or checking account used to pay for services along with your domain name, your name, address, phone number and email address using the form under “HOW TO CANCEL” or Written for mailed to the following address: TLCWebHosting.com Inc., P.O. Box 638, Cocolalla, ID 83813 USA USA
- Termination for material breach – One party may also terminate this TOS upon the occurrence of a material breach, which has not been cured by the other party within 30 days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. To be effective, notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
- Status of your domain name upon termination – If this TOS is terminated for your failure to pay the Fees when due or your domain registration has been bundled together with another of our Services, we will take ownership of your domain name. You may redeem your domain name within 30 days of such a termination by paying the Fees due us, and our non-discounted charge for registering new domains.
- When Fees are Due – You are solely responsible for the fees and charges for the Services (“Fees”). Fees are set out on the Service Description Page. Your Fees will be charged to the credit card you provided us upon sign up. You agree that we may charge this credit card for all recurring Fees due pursuant to this TOS, and any other fees or charges set out in it. Fees are due as set out on the Service Description Page (“Due Date”). Fees are due even if your credit card expires or is declined by your card issuer.
- Payment of Our Fees – You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Fees will be considered paid on the date your financial institution makes funds available to us. Should you fail to pay the Fees, or withhold any amount, for any reason, we may suspend the Services. Should your account be suspended, for any reason, Fees will continue to accrue.
- Payment of Third Party Fees – You may choose to purchase certain Services and services that are provided by other parties through us (“Third Party Services”). Fees for the Third Party Services may not appear on your invoice, or credit card statement, on the month in which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date, and the date on which you are charged.
- Past Due Fees – Past due Fees will accrue interest of 2.0% per month, or the maximum amount allowed by law. Simply refusing to pay Fees when due does not cancel your account. Accordingly, Fees will continue to accrue during this time. We reserve the right to suspend the Services, including your Domain Name, if you fail to pay the Fees when due. This right extends to disputes you initiate through your credit card company that result in “charge backs.”If your account is past due, to become a customer in good standing you will be required to (i) pay all Fees past due; (ii) pay any fees levied on us by our financial institution; (iii) accrued interest; (iv) a $250 fee if you initiated a “charge back” with your credit card company; and (v) any collection costs we have accrued, including attorney’s fees. Should your credit card company “charge back” any amount of the Fee, you will be charged a $250 charge back fee. If the Fees are not paid by your financial institution, your account will be considered delinquent.
- Refunds Our Web Hosting Service carries an unconditional 30 day satisfaction guarantee (Guarantee). The Guarantee applies to web hosting only and no other Service. To take advantage of the Guarantee you must contact us in writing within the first 30 days of the Effective Start Date for the particular Service. If you wish to retain your domain name, the cost of your domain name will be deducted from your refund at our regular, non-discounted, domain name price. If you paid us by credit card we will credit the card on file, otherwise we will send you a check.The Guarantee only applies to an individual Web Hosting Service for 30 calendar days following the Effective Date. If you purchase more than one Web Hosting Service from us, the Guarantee only applies to the Web Hosting Service that falls within this 30 day period.
- Bill Disputes If you believe there is an error in a Fee, we encourage you to contact us in writing. Our obligation to consider your claim is contingent on your providing us with written notice of this dispute, and including sufficient facts for us to investigate your claims. We must receive this notice within 15-days after the charge to your account (“Dispute Deadline”). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. It is important that you utilize this process, rather than initiating a credit card “charge back” to avoid having the Services suspended, and incurring a “charge back” fee. Charge backs qualify as “Termination for cause” herein but they do not relieve you of any responsibility for fees for service and a $15 charge back fee.
- Our Technology – We grant to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by us solely to access and use the Services. This license terminates on the cancellation or termination of this TOS. If you purchase multiple Services from us, the licenses relevant to that portion of the Services will terminate upon the termination or expiration of your agreement with us governing those Services. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in our technology shall remain with us. You are not permitted to circumvent any devices designed to protect our ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.You agree not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by us. You may not reverse engineer, decompile, or disassemble any software provided by us, unless this activity is permitted by the terms of any “open source” license that governs the use of the software.
- Third Party Technology – The Services may contain software, hardware, or other items provided to you, through us, by another party (“Third Party Technology”). We grant to you a non-exclusive, non-transferable, worldwide license to use this Third Party Technology solely in conjunction with the Services. The licensor of the Third Party Technology may withdraw this license at any time. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in our technology shall remain with us or the owner of the Third Party Technology. You are not permitted to circumvent any devices designed to protect our ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology. You may not terminate this TOS based on such a termination, even if such a termination would be a “material breach” as that term is defined in this TOS. This license terminates on the cancellation or termination of this TOS.
- Our Warranties – We warrant that we will provide the Services to you in a commercially reasonable manner, in accordance with similarly situated companies. This warranty extends only to our direct customers. We make no warranty, and expressly disclaim any warranties to End Users or visitors to our site. Services provided through us, by third parties, along with the Third Party Technology are specifically excluded from any warranty.To make a warranty claim, you must notify us in writing within 30 days of the date of our alleged breach. Your exclusive remedy, and our sole obligation, in the case of a breach of warranty is, at our option, to (i) re-perform the Services; and/or (ii) issue you a credit based on the amount of time the Services were not in conformity with this warranty, subtracted (“pro-rated”) by the amount of time they were in conformance. For the purposes of this warranty, the following issues shall not constitute services within the definition of “similarly situated companies”: up-time, “up-time guarantees” or other items for which we provide a service level agreement, regardless of whether a service level agreement is, or was, available for the Services. You acknowledge that it is your responsibility to keep back-up copies of your data. TLCWebHosting.com Inc. is not responsible for any loss of data, for any reason. TLCWebHosting.com Inc. is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its system. We may charge a fee to restore any loss of data incurred by you or your customers.
- Your Warranties – You represent and warrant to us that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; and/or (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service.You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services,that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
- DisclaimersALL SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT HEREIN, WE HAVE NOT, AND DO NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND TITLE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY US. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO US SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM US, OUR EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.SOME STATES DO NOT ALLOW US TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.
- Limitation of LiabilityIN NO EVENT WILL OUR LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY US FROM OUR DIRECT CUSTOMER FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM “OUR” SHALL BE INTERPRETED TO INCLUDE OUR EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH US.YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- Your Indemnification Obligations – You agree to indemnify, defend and hold harmless TLCWebHosting.com Inc. and its parent, subsidiary and affiliated companies, third party service providers 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) your use of the Services (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your Services or services, the use of which is facilitated by us.
- Our Indemnification Obligations – We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service provided by us hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to the Service provided solely by us. It does not extend to Third Party Services or Third Party Technology. This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement thereof. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (a) procure for you the right to continue using the Service; (b) replace with a product or service, regardless of manufacturer, performing the same or similar function as the infringing Service, or modify the same so that it becomes non-infringing; or (c) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this TOS with regard to such Service. Our indemnification obligation is limited to $100,000.
- Your Credit If you believe there is an error on your bill you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a “charge back” based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $200 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.
- Transfer / Assignment This TOS and applicable Agreements may be assigned by TLCWebHosting.com Inc.. It may not be assigned by you. The TOS and applicable Agreements shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
- Notices Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you.Please refer to our website, for contact information for most issues, including technical support and billing.
- Governing Law, Venue and Jurisdiction The validity, interpretation, and performance of this TOS, and of the agreements and policies that apply to the Services, shall be controlled by and construed under the laws of the State of Idaho, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law. You agree that jurisdiction and venue are proper in the state courts located in the State of Idaho, or the U.S. District Court for the county of Bonner Idaho, located in Sandpoint, Idaho. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
- Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
- Severability In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this TOS is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this TOS by written notice to the other.
- No Waiver No waiver of rights under this TOS, or any of our policies, or agreement between you and TLCWebHosting.com Inc. shall constitute a subsequent waiver of this or any other right under this TOS.
- Force Majeure Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, bandwidth interruptions, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
- Third Party Beneficiaries This agreement is solely between you and TLCWebHosting.com Inc.. There are no third party beneficiaries to this agreement, nor shall you be considered to be a third party beneficiary of any of our vendor or supplier contracts.
- Survival The following paragraphs shall survive the termination or expiration of this TOS: 7.6, 14, 15, 16, 19, 20, 22, 26.
Updated 04/19/2015, 01/27/2017, 02/05/2017, 06/08/2017