The following terms and conditions (these “Terms”) govern the provision by MyServer LLC, hereinafter referred to as “MyServer”, of the services and/or products (referred collectively herein as “Services and Products”) described on the Product Order Form, the Service Level Agreement and Service Exhibit attached hereto (collectively the “Service Descriptions”) and defined in any of the Company’s product support listing, to the customer (“Customer”) identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this “Agreement”.
1) Backup and Data Loss
Your use of this service is at your sole risk. MyServer doesn’t provide a backup service. MyServer is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on MyServer servers. Backups will not be provided for accounts that have been suspended or terminated for any reason.
2) Uptime Guarantee
Approval of any credit is at the discretion of MyServer dependent upon justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. See our Service Level Agreement (SLA).
3) Term; Termination; Cancellation Policy
- The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE MYSERVER TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
- If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel, you acknowledge, agree and authorize MyServer to continue billing your credit card and you remain responsible for any uncollected amounts.
- This Agreement may be terminated
- by either party by giving the other party thirty (30) days prior written notice subject to a minimum $50.00 charge as an early cancellation fee payable by Customer,
- by MyServer in the event of nonpayment by Customer,
- by MyServer, at any time, without notice, if, in MyServer’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of the this Agreement, Customer Agreements and related agreements, AUP, or Customer’s use of the Services disrupts or, in MyServer’s sole and absolute discretion and/or judgment, could disrupt, MyServer’s business operations and/or
- by MyServer as provided herein.
- If You cancel this Agreement, upon proper notice to MyServer, prior to the end of the Initial Term or any Term thereafter,
- You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
- MyServer may (but is not obligated to) refund to You all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment, provided that, You are not in breach of any terms and conditions of this AUP, Customer Agreements; and/or
- You shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term (other than basic hosting fees as provided in (ii) above). Any cancellation request shall be effective thirty (30) days after receipt by MyServer, unless a later date is specified in such request.
- MyServer may terminate this Agreement, without penalty,
- if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or
- immediately, if MyServer determines that Customer’s use of the Services, the Web site or the Customer Content violates any MyServer term or condition, including this AUP, Customer Agreements, Spam Policy, or Domain Policy. If MyServer cancels this Agreement prior to the end of the Term for Your breach of this Agreement and related agreements, including the AUP, Customer Agreements, Spam Policy, or Domain Policy or Customer’s use of the Services disrupts our network, MyServer shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, You shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and MyServer shall have the right to charge You an administrative fee of a minimum of $50.00.
- Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 1, 3(e), 7, 8, 9, 10, 12, 13, 14, and 17 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which MyServer may be entitled.
4) Zero Tolerance Spam Policy
We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. “Safe lists”, purchased lists, and selling of lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.
Sites advertised via SPAM (Spamvertised) may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, phone, postal mail, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated.
MyServer reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.
MyServer reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee or any charges incurred for blacklist removal. This cost of the clean up fee is entirely at the discretion of MyServer.
5) Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.
6) Money back Guarantee / Refund Policy
By ordering our services, you agree to adhere to our Refund Policy. Failure to do so will result in suspension and possibly termination.
7) Billing and Payment
- Customer will pay to MyServer the service fees for the Services in the manner set forth in the Order Form.
- MyServer may increase the Service Fees (1) in the manner permitted in the service description and (2) at any time on or after expiration of the Initial Term.
- The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on MyServer’s net income). All such taxes will be added to MyServer’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
- Unless otherwise specified, all fees and related charges shall be due and payable within fourteen (14) days after the date of the invoice. If any invoice is not paid within seven (7) days after the date of the invoice, MyServer may charge Customer a late fee of $15.00 for; in addition any amounts payable to MyServer not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
- If MyServer collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and MyServer are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and MyServer’s reasonable attorneys’ fees.
- If any check is returned for insufficient funds MyServer may impose a minimum processing charge of $25.00.
- In the event that any amount due to MyServer remains unpaid seven (7) days after such payment is due, MyServer, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
- There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers will be assessed a minimum $35.00 charge.
- There may be a minimum $35.00 charge to for all credit card chargebacks.
- Customer acknowledges and agrees that MyServer may pre-charge Customer’s fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
- YOU ACKNOWLEDGE, AGREE AND AUTHORIZE MYSERVER TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 3.
8) Reseller: Client Responsibility
Resellers are responsible for supporting their clients. MyServer does not provide support to our Reseller’s Clients. If a reseller’s client contacts us, we reserve the right to place the client account on hold until the reseller can assume their responsibility for their client. All support requests must be made by the reseller on their clients’ behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their clients’. MyServer will hold any reseller responsible for any of their clients actions that violate the law or the terms of service. A $15 administrative charge may be applied to unsuspend a Reseller account if there is abuse under account.
Customer agrees that it shall defend, indemnify, save and hold MyServer harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against MyServer, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless MyServer against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with MyServer; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from MyServer servers, to the highest extent possible under law.
10) Prohibition of Offensive Behavior
Racist, intolerant, “hate”, defamatory, “stalking”, invitations to fight, threatening or any communication of any nature that we decide, in our sole discretion, as being improper, will result in service termination without prior notice. Subscribers may not make comments on online social networking, blogs, forums or any online media websites, that we deem to be inproper, unfair or discourteous to the effort made my MyServer employees. Your account may be suspended or terminated without refund. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or initiate a chargeback.
11) Right To Refuse
MyServer reserves the right to refuse or discontinue service to anyone at MyServer’s sole discretion. MyServer reserves the right to refuse or discontinue service without any notice if you fail our fraud checks which you, in acceptance of these terms, allow us to perform. MyServer may deny you access to all or part of the service without notice if you engage in any conduct or activities that MyServer in its sole discretion believes violates any of the terms and conditions in this agreement. MyServer shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that MyServer has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. MyServer reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. MyServer also reserves the right to refuse refunds in cases where MyServer believes abuse has taken place.
12) Fraud Checks
MyServer utilizes FraudRecord and MaxMind to screen new orders for previous fraudulent activity and report existing clients who violate our Terms of Service (TOS). In case of a violation, you may be reported to FraudRecord for misbehaviour using one-way hashed information and all services with our company may be terminated with or without notice. If your order is flagged as fraud or a fraudrecord search finds that you have a valid fraudrecord on file with fraudrecord.com at any time during your account holdings with our company, then from that point forward we reserve the right to refuse service with or without notice for any and all services that you hold with our company either by reseller or not. We also reserve the right to refuse any payment grace period for invoices and to terminate service of any kind for non payment on the day of invoice due beginning at midnight + 1 second our time on the due date, even if no TOS or other violation has occured.
MyServer shall not be responsible for any damages your business may suffer. MyServer makes no warranties of any kind, expressed or implied for services we provide. MyServer disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by MyServer and its employees.
By ordering our services, you agree to adhere to our Acceptable Use Policy. Failure to do so will result in suspension and possibly termination.
16) Un-Suspension Fees
If your services at MyServer get suspended for any reason deemed inappropriate by MyServer or if the TOS has been violated. A un-suspension fee of $5 will be charged at our discretion to the effected account in order to unsuspend it.
17) Domain Transfers
MyServer reserves the right to deny any domain transfers that have been placed in the first 90 days of purchase. MyServer will only allow transfers after 90 days of purchase.
18) Changes to the TOS
MyServer reserves the right to revise its policies at any time without notice.