No SPAM ALLOWED OR AUTHORIZED
Service Agreement (Dedicated Servers, Game Servers, Web Hosting, Consulting)
This Service Agreement ("Agreement") is a valid legal agreement between Titanium Servers, LLC. ("Titanium Servers"), dba Oregon Data Experts, dba Bryan Caddy, and you, the individual or single entity ordering Titanium Servers services ("Services") either via an on-line order form or via Titanium Servers customer service call center ("Sign-up Process"). This Agreement governs your purchase and use of Titanium Servers Services ordered by you during the Sign-up Process.
You must complete the acceptance process below before Titanium Servers will activate the Services. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING THE ACCEPTANCE PROCESS. Titanium Servers reserves Servers acceptance of this Agreement.
1 Services:
1.1Titanium Servers offers a number of standard and customized plans as published on the Titanium Servers website for the particular brand of Service offered by Titanium Servers. You may also purchase optional add-ons. Subject to these Terms of Service and during the term of this Agreement, Titanium Servers agrees to provide to you the Services you select during the Sign-up Process. Titanium Servers reserves the right to amend its Services offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
1.2 TITANIUM SERVERS WILL MAKE EVERY EFFORT TO PLACE YOUR SERVICES IN A DESIRED LOCATION. TITANIUM SERVERS AT ITS SOLE DISCRETION CAN AND WILL MOVE YOUR SERVICES SHOULD SPACE BE UNAVAILABLE OR IF YOUR UTILIZATION IS UNCOMMON IN A PARTICULAR LOCATION. RACK SPACE AND SERVER SPACE ARE LIMITED AND CHANGE HOURLY. DEDICATED AND GAME SERVERS ARE SUBJECT TO THESE TERMS, AND MAY BE REALLOCATED OR MOVED FROM SITE TO SITE, VENDOR TO VENDOR, AS DETERMINED NECESSARY BY TITANIUM SERVERS.
2 Fees and Payment Terms:
2.1 Titanium Servers may charge set up fees, recurring service fees, and other one-time fees for optional services and, if requested by you, fees for domain name registration services (collectively "Service Fees"). Unless otherwise specified in any written offer or promotion, the Service Fees published on the Titanium Servers website for the particular brand of Service you ordered are applicable to all transactions between you and Titanium Servers. Titanium Servers may amend the Services and/or the Service Fees associated with any of the Services at any time and from time to time without notice to you.
2.2 All Service Fees are due according to the schedule published on the Titanium Servers website for the particular brand of Services you ordered or, if not published, on the first day of the billing cycle. All Service Fees and other monetary payments must be made in U.S. Dollars. If you are not billed by invoice, you authorize Titanium Servers to charge the credit card, debit card or bank account (whether via ACH service or otherwise) (your "Payment Process") that you provide to Titanium Servers for payment of the Service Fees for Services you order before Titanium Servers activates the Services. You further authorize Titanium Servers to charge you according to your Payment Process for the amount of all subsequent periodic Service Fees (at Titanium Servers then-current rates) prior to the commencement of any renewal period for such Services as described in Section 3 of this Agreement and for the amount of all other fees and charges (at Titanium Servers then-current rates) as they become payable pursuant to this Agreement. Services Fees and all other fees and charges that become due during any renewal period will be charged according to your previous payment option and/or Payment Process. All Payment Process payments are deemed authorized by you and will be assessed in real time.
2.3 If Titanium Servers does not receive payment from your Payment Processor (i.e., credit or debit card issuer or other financial institution), you agree to pay Titanium Servers all amounts due upon demand. Titanium Servers may charge you for a late payment fee equal to one and one-half percent (1.5%) on any overdue balance, or the maximum amount allowed by law if less, for each month or fraction of a month the overdue amount remains unpaid. Titanium Servers may also charge you for an administrative fee for any returned checks or if your Payment Processor declines payment. You agree to pay Titanium Servers collection costs, including reasonable attorneys’ fees, if Titanium Servers is required to take action to collect any amounts that you fail to pay when due pursuant to this Agreement.
2.4 Titanium Servers reserves the right to collect any reversed charges initiated by you or your credit card company, including disputed charges, service fees, legal fees, late payments and other charges determined by this agreement. The customers credit card company, PayPal.com, and or financial institution cannot waive your legal obligations in this agreement. Any reverse charge or disputed charge will constitute a breach of this agreement, and the customer agrees to pay all fees, charges, account balance, and lawyer fees associated with said breach and the collection of said fee’s and accounts. Accounts in dispute will automatically be suspended and or terminated at Titanium Servers sole discretion.
2.5 Titanium Servers may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide valid Payment Processor information or authorization or fail to pay for any Services when due. Titanium Servers may charge a Fifty Dollar ($50.00) fee to reinstate any Service that has been suspended or terminated.
2.6 There is a non-refundable registration fee for all new domains that you purchase through Titanium Servers. Titanium Servers may automatically pay this fee as well as all annual non-refundable renewal fees (both fees also "Service Fees") up to fifteen (15) days in advance of the renewal date on your behalf provided your account is active and current. These Service Fees will appear on your next billing statement unless prior arrangements are made with the Titanium Servers customer service department. You agree that you are responsible for reimbursing Titanium Servers for all Service Fees advanced on your behalf.
3 Term and Termination:
3.1 The Agreement will continue for the term stated in during the Sign-up Process or, if no term is stated, on a month-to-month basis. The Agreement will automatically renew for successive terms, each equal in length to that of the initial term. Either party may terminate this Agreement effective at the end of the then current term, whether annual, month-to-month or some other fixed term, upon at least thirty (30) days notice prior to the end of the then current term and such termination will be effective upon expiration on the last day of the then current term. The termination of this Agreement will constitute the termination of all of your Services.
3.2 If you breach any term of this Agreement including, but not limited to, Section 2 (Fees and Payment Terms) and Section 5 (Restrictions on Use), Acceptable Usage Policy, Titanium Servers may, in its sole and exclusive discretion, suspend or terminate your Services immediately and without notice to you. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
3.3 IF THIS AGREEMENT IS TERMINATED FOR ANY REASON PRIOR TO THE EXPIRATION OF THE INITIAL TERM, TITANIUM SERVERS WILL NOT PROVIDE ANY REFUND OR CREDIT TO YOU FOR ANY SERVICE FEES THAT YOU PAID IN ADVANCE, BY CREDIT CARD OR OTHERWISE, AND TITANIUM SERVERS WILL HAVE THE RIGHT TO CHARGE YOU FOR AN ACCOUNT ADMINISTRATION FEE OF TWENTY DOLLARS ($20.00) WHICH FEE WILL NOT BE OFFSET BY ANY PRE-PAID AMOUNTS. You authorize Titanium Servers, in its sole and exclusive discretion, to charge your Payment Process or forward an invoice to you immediately upon the termination of this Agreement for the amount of any Service Fees that are then outstanding.
3.4 Titanium Servers reserves the right to sell any domain name registered with our services after an account is terminated without prior notice to anyone. Titanium Servers in its sole discretion determines domain eligibility for sale.
4 Warranty Disclaimers and Limitations of Liability:
YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4 ARE REASONABLE AND ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND TITANIUM SERVERS. YOU ACKNOWLEDGE THAT TITANIUM SERVERS WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMIC BASIS WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.
4.1 TITANIUM SERVERS PROVIDES THE SERVICES AND THE LICENSED MATERIAL (AS DEFINED IN SECTION 7.2 BELOW) TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. TITANIUM SERVERS MAKES NO EXPRESS WARRANTIES OF ANY KIND AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING ANY SERVICES OR ANY EQUIPMENT THAT TITANIUM SERVERS MAY PROVIDE TO YOU OR REGARDING THE LICENSED MATERIAL. TITANIUM SERVERS DOES NOT WARRANT THAT THE SERVICES, THE LICENSED MATERIAL OR THE USE OF EITHER WILL BE WITHOUT INTERRUPTION, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. TITANIUM SERVERS MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE LICENSED MATERIAL OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES, THE LICENSED MATERIAL OR THE INTERNET. TITANIUM SERVERS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS 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 TITANIUM SERVERS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY TITANIUM SERVERS, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILLIATES OR CONTRACTORS WILL CREATE A WARRANTY, EXPRESS OR IMPLIED, NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION. SOME STATES (UNITED STATES ONLY) DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. CONSEQUENTLY, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THAT LIMITED EXTENT. YOU AGREE THAT, IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, THE LICENSED MATERIAL OR ANY EQUIPMENT THAT TITANIUM SERVERS MAY PROVIDE TO YOU, ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE THE SERVICE COMMENCED OR THE LICENSED MATERIAL IS INSTALLED.
4.2 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS TITANIUM SERVERS AND ITS SUBSIDIARIES AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES, RELATED TO OR ARISING FROM: (I) YOUR AND YOUR END USERS’ USE OF THE SERVICES AND/OR THE LICENSED MATERIAL; (II) ANY VIOLATION OF THE AUP; (III) ANY BREACH BY YOU ANY PROVISION OF THIS AGREEMENT; AND/OR (IV) ANY ACTS OR OMISSIONS BY YOU.
4.3 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Titanium Servers has no control over information contained on the Internet and accepts no responsibility for any information that you may receive via the Internet.
4.4 You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services or obtain from the Internet.
4.5 You agree that if Titanium Servers takes any corrective action under this Agreement in response to your or your end users’ actions or failures to act, that corrective action may adversely affect you or your end users and you agree that Titanium Servers shall have no liability to you or your end users due to any corrective action taken by Titanium Servers.
4.6 Titanium Servers strongly encourages you to back-up your data regularly. You agree that Titanium Servers has no obligation to back-up any data related to your website unless Titanium Servers expressly agrees otherwise in writing and you have currently paid for such back-up Services. You agree that you will regularly back-up your data whether or not Titanium Servers has any obligation to do so. You further agree that your failure to back-up your data regularly will mitigate against any claim for damages you may bring against Titanium Servers relating to any loss of your data.
4.7 YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD TITANIUM SERVERS OR ITS LICENSORS 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 TITANIUM SERVERS HAS 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 TITANIUM SERVERS LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
4.8 YOU AGREE THAT YOU WILL NOT HOLD TITANIUM SERVERS OR ITS LICENSORS LIABLE UNDER ANY CIRCUMSTANCE FOR ANY DAMAGES THAT YOU SUFFER THAT RESULT FROM (I) THE USE OF OR INABILITY TO USE THE SERVICES OR LICENSED MATERIAL, (II) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OR CORRUPTION OF DATA AND/OR BACK-UP DATA, FAILURE TO PERFORM DATA BACK-UP FUNCTIONS (OTHER THAN THOSE EXPRESSLY AGREED TO BY TITANIUM SERVERS AND CURRENTLY PAID FOR BY YOU), ERRORS, VIRUSES, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, NON-DELIVERIES, MISDELIVERIES OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT CAUSED BY TITANIUM SERVERS NEGLIGENCE, ACTS OF GOD, ANY FAILURE OF TITANIUM SERVERS NETWORK OR SYSTEMS, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO TITANIUM SERVERS RECORDS, PROGRAMS, EQUIPMENT OR SERVICES; (III) YOUR ACTS OR OMISSIONS; OR (IV) THE ACTS OR OMISSIONS OF THIRD PARTIES.
4.9 YOU AGREE THAT TITANIUM SERVERS MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, COSTS AND CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) SHALL BE LIMITED TO THE LESSER OF (A) THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY YOU TO TITANIUM SERVERS FOR THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE, (B) PROVEN DIRECT DAMAGES, AND (C) NOT EXCEEDING ONE HUNDRED DOLLARS ($100.00).
4.10 Titanium Servers does not offer any uptime guarantee. Any reference to uptime is merely an illustration of averages using Multi Router Graphing (MRTG), an industry standard in monitoring and reporting. Because of the nature and volatility of our services, we can’t guarantee uptime. Titanium Servers does not offer a Service Level Agreement (SLA) of any type.
4.11 The terms of this Section 4 shall survive any termination of this Agreement.
5 Restrictions on Use:
5.1 Your use of the Services is subject to Titanium Servers Acceptable Use Policy, as revised from time to time (the "AUP"), which is incorporated herein by reference. The AUP is available on Titanium Servers website at www.titaniumservers.com. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern.
5.2 Titanium Servers does not intend to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Services (the "Your Content"). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users’ content and all activities on your website. Titanium Servers, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of Your Content and suspension and/or termination of your Services, in the event of notice of any possible violation of the AUP by you or your end users. You agree that Titanium Servers will have no liability to you or any of your end users due to any corrective action that Titanium Servers may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
5.3 You warrant that Your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.
5.4 Your use of networks or computing resources provided to Titanium Servers by third party providers and made available to you as part of the Services is subject to the respective permission and usage policies of such third parties.
5.5 You expressly (i) grant to Titanium Servers a license to cache the entirety of Your Content and your web site, including content supplied by third parties, hosted by Titanium Servers under this Agreement, and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
5.6 If Titanium Servers assigns to you an Internet Protocol address for your use, you may use that Internet Protocol address only as expressly permitted by Titanium Servers in connection with your use of the Services during the term of this Agreement. Titanium Servers will maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to you by Titanium Servers. Titanium Servers reserves the right, in its sole and exclusive discretion, to change or remove any and all such Internet Protocol numbers and addresses.
5.7 You agree that you will not use excessive amounts of CPU processing on any of Titanium Servers systems. Titanium Servers, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and suspension and/or termination of Services, in the event you violate this policy. You agree that Titanium Servers will have no liability to you or any of your end users due to any corrective action that Titanium Servers may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
5.8 You agree that you will not use bandwidth and disk usage amounts that exceed the limits applicable to your Services as published on the Titanium Servers website for the particular brand of Services you ordered ("Agreed Usage"). Titanium Servers will monitor your bandwidth and disk usage. Titanium Servers, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and suspension and/or termination of Services, in the event you exceed the Agreed Usage. You agree that Titanium Servers will have no liability to you or any of your end users due to any corrective action that Titanium Servers may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
6 Trademarks and Proprietary Rights:
6.1 Titanium Servers and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by Titanium Servers in connection with the Services or other products or services offered by Titanium Servers and its subsidiaries and affiliates, to identify the products or Services of Titanium Servers or its subsidiaries and affiliates (collectively the "Titanium Servers Trademarks") are the trademarks of Titanium Servers and its subsidiaries and affiliates. You agree not to use the Titanium Servers Trademarks in connection with your products or services, or any third-party’s products or services, or in any manner that disparages or discredits Titanium Servers. All other brands and names (including third-party product names) used in connection with the Services or other products or services offered by Titanium Servers and its subsidiaries and affiliates are the property of their respective owners.
6.2 Titanium Servers acknowledges that it claims no proprietary rights in Your Content or any intellectual property right contained therein. You acknowledge and agree that Titanium Servers and its licensors own all right, title, and interest in: (a) the Services and any other products or services offered by Titanium Servers and its subsidiaries and affiliates; (b) the technology available to you as part of the Services; (c) and all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained or maintained on the websites maintained by Titanium Servers and its subsidiaries and affiliates (collectively "Titanium Servers Content"), excluding Your Content.
7 License:
7.1 This Section 7 (the "License") applies to you only if you use software licensed to you in connection with the Services and is in addition to and not in lieu of all other Terms of Service that govern your Services.
7.2 In connection with the Services, Titanium Servers may make available to you the Titanium Servers Content, certain technology and software owned by Titanium Servers or third parties (which may include corresponding documentation, associated software components, media, printed materials, and "online" and electronic documentation and all updates and upgrades thereto) (the "Licensed Material"). You agree that the Licensed Material is the exclusive property of Titanium Servers and its licensors and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
7.3 Titanium Servers grants to you the non-exclusive right to install the Licensed Material on a single computer; or install and store the Licensed Material on a single storage device, such as a network server, used only to install the Licensed Material on your other computers over an internal network, provided you have a license for each separate computer on which the Licensed Material is installed and run. The Licensed Material is licensed, not sold. The license for the Licensed Material may not be shared, installed or used concurrently on different computers. In the event the Licensed Material is distributed along with other Titanium Servers Licensed Materials as part of a suite of products (collectively, the "Suite"), the license of the Suite is licensed as a single product and none of the products in the Suite, including the Licensed Material, may be separated for installation or use on more than one computer.
7.4 You may not remove or alter any copyright notices on any copies of the Licensed Material. You may not make or distribute copies of the Licensed Material to third parties or electronically transfer the Licensed Material from one computer to another or over a network. You may not alter, merge, modify, adapt or translate the Licensed Material, or reverse engineer, decompile, or disassemble the Licensed Material, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not modify the Licensed Material or create derivative works based upon the Licensed Material. You may not sell, rent, lease, lend, assign, transfer or sublicense the Licensed Material. You must comply with all applicable laws regarding use of the Licensed Material. Titanium Servers may provide you with support services related to the Licensed Material ("Support Services"). Use of Support Services is governed by the Terms of Service. Any supplemental software code Titanium Servers provides to you as part of the Support Services will be considered part of the Licensed Material and subject to the terms and conditions of this License. With respect to technical information you provide to Titanium Servers as part of the Support Services, Titanium Servers may use such information in compliance with its Privacy Policy.
7.5 Without prejudice to any other rights, Titanium Servers may, in its sole and exclusive discretion, terminate this License if you fail to comply with the terms and conditions of this License. In such event, you must destroy all copies of the Licensed Material. All other rights of both parties and all other provisions of this License will survive any termination.
7.6 The foregoing license gives you limited license to use the Licensed Material. Titanium Servers and its licensors retain all right, title and interest, including, but not limited to, copyright and intellectual property rights, in and to the Licensed Material and any copies thereof. All title and intellectual property rights in and to the content that may be accessed through use of the Licensed Material are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants you no rights to use such content. Titanium Servers and its licensors reserve all rights not expressly granted.
7.7 The Licensed Material is provided with "RESTRICTED RIGHTS" applicable to private and public licensees alike. Without limiting the foregoing, use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this License and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
7.8 You agree that you will not export or re-export the Licensed Material to any country, person, entity or end user prohibited by the United States Export Administration Act and the regulations promulgated thereunder. Restricted countries currently include, but are not necessarily limited to Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. You represent and warrant that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.
7.9 The Licensed Material may contain third party software that require notices and/or additional terms and conditions. All required third party software notices and/or terms and conditions are made a part of and incorporated by reference into this License.
8 Indemnification:
8.1 Customer agrees to indemnify, defend and hold harmless Titanium Servers and its parent, subsidiary and affiliated companies, 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) Customer's use of the Services, (ii) any violation by Customer of the Usage Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
9 Limitation of Liability:
9.1 Customer agrees that no Titanium Servers Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Titanium Servers at the time) which may exist in the Services or Titanium Servers equipment used to provide the Services.
9.2 Under no circumstances, including negligence, shall any Titanium Servers Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Titanium Servers has been advised of the possibility of such damages. No Titanium Servers Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Titanium Servers records, programs, equipment or services.
9.3 Customer understands, acknowledges and agrees that if Titanium Servers takes any corrective action under this Agreement because of an action of Customer or one if its customer or a Reseller Customer, that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Titanium Servers shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Titanium Servers.
9.4 This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
10 Force Majeure:
10.1 Titanium Servers shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
11 Governing Law; Jurisdiction:
11.1 Washington law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction's laws. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and cost and expenses incurred, subject to the Limitation of Liabilities clause. The parties consent to the exclusive jurisdiction and venue of the courts of the State of Washington or to any Federal Court located within the State of Washington.
12 Assignment:
12.1 Customer shall not have the right to assign this Agreement without the prior written consent of Titanium Servers. This Agreement shall be binding upon and inure to the benefit of Customer and Titanium Servers and their successors and permitted assigns.
13 Severability:
13.1 This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
13.2 Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
14 Modification of Terms:
14.1 Titanium Servers reserves the right to modify this policy at any time and without advance notice, effective upon making the modified provisions available on the Titanium Servers Website. You are responsible for regularly reviewing these documents. Continued use of the Titanium Servers Services after any such changes shall constitute your consent to such changes. Titanium Servers does not and will not assume any obligation to notify you of any changes to the Terms of Service.
ACCEPTED BY COMPANY July 3rd, 2006
Amendment: Acceptable Use Policy (JULY 7th 2006)
Titanium Servers maintains this Acceptable Use Policy ("AUP") to provide users of its Services (as such term is defined in the Terms of Service located at http://www.titaniumservers.com for purposes of this AUP, the term "Services" shall also be deemed to include Titanium Servers various systems and network) with a clear statement of rules and use restrictions that apply to the use of Titanium Servers Services.
This AUP forms an integral part of the Terms of Service that govern your use of Titanium Servers Services. Your compliance with and cooperation in Titanium Servers enforcement of this AUP is an express condition to your continuing contractual rights to use Titanium Servers Services. This AUP also applies to your employees, agents, contractors and end users. The evolving nature of the Internet and on-line commerce makes it necessary for Titanium Servers to reserve the right to make changes to this AUP at any time. You agree that any changes will be effective when posted on-line at this location and that your continued use of Titanium Servers Services will constitute your acceptance of any changes or additions to this AUP. You may determine the date of posting at the Effective Date section at the end of this AUP.
This AUP is not intended to address all possible unacceptable uses of Titanium Servers Services. As a result, Titanium Servers reserves complete discretion to determine what constitutes an unacceptable use of its Services and reserves the right to suspend or terminate your Services, or take such other action as Titanium Servers deems appropriate in its sole discretion.
Prohibited Uses
YOUR USE OF TITANIUM SERVERS SERVICES MAY NOT VIOLATE ANY OF THE FOLLOWING PROVISIONS. TITANIUM SERVERS MAY SUSPEND OR TERMINATE YOUR SERVICES IF IT DETERMINES, IN ITS SOLE AND EXCLUSIVE DISCRETION, THAT YOU HAVE ENGAGED IN ANY ACTIVITY THAT VIOLATES THIS AUP. YOU VIOLATE THIS AUP WHEN YOU, YOUR END USERS OR ANY THIRD PARTY ACTING ON YOUR OR YOUR END USERS’ BEHALF, ENGAGE IN ANY ACTIVITY, DIRECTLY OR INDIRECTLY, OR ATTEMPT TO ENGAGE IN AN ACTIVITY, WHETHER SUCCESSFULLY OR OTHERWISE, CONTRARY TO THE TERMS OF THIS AUP.
TITANIUM SERVERS WILL NOT INTERVENE OR BECOME INVOLVED IN ANY DISPUTES BETWEEN YOU AND A THIRD PARTY. CONSEQUENTLY, TITANIUM SERVERS RESERVES THE RIGHT, IN ITS SOLE AND EXCLUSIVE DISCRETION, TO SUSPEND OR TERMINATE YOUR SERVICES UPON ITS RECEIPT OF ANY THIRD PARTY COMPLAINT THAT YOU HAVE ENGAGED IN ANY ACTIVITY THAT VIOLATES THIS AUP, THAT MAY OTHERWISE SUBJECT TITANIUM SERVERS TO LIABILITY FOR ANY REASON, OR THAT MAY CAUSE TITANIUM SERVERS TO INCUR LEGAL FEES OR OTHER EXPENSES.
TITANIUM SERVERS MAY SUSPEND AND TERMINATE YOUR SERVICES UNDER THIS AUP WITHOUT NOTICE TO YOU AND YOUR END USERS. TITANIUM SERVERS MAY ALSO REPORT YOUR ACTIVITIES TO FEDERAL AND/OR STATE LAW ENFORCEMENT AGENCIES.
Lawful Purpose
You may use Titanium Servers Services only for lawful purposes. You may not transmit, store or present any information, software, data, file or material in violation of any applicable law or regulation. You may not use Titanium Servers Services to facilitate, or otherwise assist in, the violation of any law or regulation.
Spamming and Related Activities
Titanium Servers strictly prohibits your use of Titanium Servers Services to transmit SPAM or to host a site that is advertised or announced via SPAM. "SPAM" is any form of unsolicited advertisement or informational announcement that is transmitted, whether singularly or in bulk, via any Internet-based communications medium including, but not limited to, Microsoft Messenger Service; Chat Programs such as AIM, YIM and MSN; e-mail, Internet facsimile, Internet phone, instant and text messaging (SMS) and IRC applications.
Activities that violate this policy may also subject you to civil liability to third parties and to criminal penalties.
Permission Based Communications
You may use Titanium Servers Services to transmit permission-based communications for purposes of marketing your goods and services, provided that you otherwise comply with the standards set out in this AUP and all applicable laws including, but not limited to, the CAN-SPAM Act. All marketing conducted using Titanium Servers Services must be permission (opt-in) based. You must keep adequate and verifiable records to prove that your marketing is strictly permission-based. In addition, should you purchase mailing lists or other types of data that are to be used to contact third parties via Titanium Servers Services, you must verify that the lists have been compiled on a strict "opt-in" basis.
In addition to the foregoing general requirements, all permission-based communications sent using Titanium Servers Services must include the following (and you are required to take the corresponding actions set forth below):
A working "unsubscribe" link. (You must honor all unsubscribe requests within 72 hours from the time they enter Titanium Servers Services.)
The recipient’s accurate e-mail address in the "to" line and the sender’s accurate e-mail address in the "from" line.
A working link to your privacy policy.
A working "abuse" address and/or link. (You must answer all complaints forwarded to this address within 72 hours from the time they enter Titanium Servers Services.)
An up-to-date website that corresponds with the domain portion of the response e-mail. Your website must conspicuously display your up-to-date mailing address, telephone number and facsimile number.
You are solely responsible for the transmission of all such permission-based communications. Titanium Servers reserves the right to suspend or terminate your Services in the event Titanium Servers receives an excessive number of complaints related to your permission-based communications, whether such complaints are made by parties whom "opt-in" or otherwise. You agree that Titanium Servers may determine what constitutes an excessive number of complaints in its sole and exclusive discretion.
Copyright Infringement
You may not use Titanium Servers Services in any manner that infringes upon the rights of a third party under federal and foreign copyright laws.
Titanium Servers is registered with the United States Copyright Office pursuant to the Digital Millennium Copyright Act ("DMCA"). If a copyright owner believes in good faith that Titanium Servers is the hosting provider of material that infringes that copyright, the copyright owner may submit a written notification of claimed infringement to Titanium Servers designated copyright agent:
By Mail:
Bryan Caddy, CEO
Titanium Servers, LLC.
1113 NW 52ND STREET
Vancouver, WA 98663
By E-mail:
mailto:ceo@titaniumservers.com
PLEASE NOTE: The designated copyright agent is appointed solely for the purpose of receiving notices of copyright claims submitted pursuant to the DMCA. No other notices or communications should be forwarded to the designated copyright agent.
The DMCA contains very specific guidelines as to what proper notification of claimed infringement must contain. Copyright owners may obtain a copy of the DMCA, including these guidelines, by visiting the web site of the U.S. Copyright Office at http://www.copyright.gov/title17/92chap5.html#512.
Titanium Servers is not required to respond to notices that do not meet the requirements of the DMCA. Copyright owners should be aware that there are substantial penalties for false claims and that Titanium Servers will actively refer complainants who use the DMCA for improper purposes to relevant law enforcement agencies.
In the event that Titanium Servers must remove, or disable access to, material on your web site that is alleged to infringe another’s copyright under the DMCA, you acknowledge and agree that Titanium Servers may do so by disabling access to your entire web site.
Violations of Other Intellectual Property Rights
You may not use Titanium Servers Services in any manner that infringes or misappropriates any other intellectual property rights of a third party including, but not limited to, trademarks, trade names, trade dress, logos, domain names, patents, trade secrets and other proprietary rights of a third party.
Although Titanium Servers reserves the right to suspend or terminate your Services upon its receipt of a third party claim that alleges that you are using Titanium Servers Services in a manner that infringes such third party’s intellectual property rights, Titanium Servers may, in its sole and exclusive discretion, allow you to continue use of its Services provided that you confirm in a timely manner that you have discontinued the allegedly infringing activities or provide Titanium Servers with a court order confirming that your activities do not infringe the intellectual property rights of such third party.
Defamation and Harassment
You may not use Titanium Servers Services to defame, harass, abuse, libel, slander or threaten a third party.
Complaints about activity in violation of this policy engaged in by Titanium Servers customers or end users may be directed to sales@titaniumservers.com
Child Pornography
You may not use Titanium Servers Services to disseminate or display images or other content that constitutes child pornography under United States laws.
Titanium Servers applies a zero tolerance policy to the enforcement of this prohibition. Titanium Servers takes an active role in cooperating with law enforcement officials in their efforts to prosecute violations of statutes that prohibit the dissemination of child pornography. Titanium Servers reports the use of its Services to disseminate or display child pornography as required by law. You will not be notified that Titanium Servers may be cooperating with law enforcement or that Titanium Servers has reported the use of its Services in this manner.
For further information about child pornography, you may visit the web site of the National Center for Missing and Exploited Children at www.ncmec.org.
Complaints about activity in violation of this policy engaged in by Titanium Servers customers or end users may be directed to sales@titaniumservers.com
Disruptive or Abusive Activity
You may not use Titanium Servers Services:
To forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet Protocol addresses to conceal or misidentify the origin of a message; to create or transmit any Internet virus, worm, Trojan horse or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operations of the Services; to maintain open mail relays, forward or propagate "chain" mail or mail bomb; to engage in denial of service attacks including, but not limited to transmitting packets with an illegal packet size, UDP flooding, ping-flooding, half-open TCP connection flooding and any other use, or otherwise interfere with an Internet user’s terminal session; in a manner that encumbers or utilizes disk space, processors or other system requirements beyond those allowed by your specific account; to establish, create or otherwise make available any Internet Relay Chat (IRC) server; to hack, subvert, or assist others in hacking or subverting the security or integrity of Titanium Servers Services;
to disseminate or display indecent or obscene images or content; to solicit information that is considered to be confidential, such as passwords or credit card information, or to crack passwords or to defraud third parties into releasing their passwords; to solicit or facilitate the performance of any illegal activity, even if the activity itself is not performed; and/or in any manner that might potentially subject Titanium Servers to unfavorable regulatory action, subject Titanium Servers to any liability for any reason, or adversely affect Titanium Servers public image, reputation, goodwill, business or operations.
United States Export Laws
United States export control laws govern your use of Titanium Servers Services. These laws apply to you and your use of Titanium Servers Services regardless of whether you actually reside in the United States.
You may not use Titanium Servers Services for any purpose that violates these laws, which may include the sale of products that may be legal to sell in the United States, but illegal to export. You may not use Titanium Servers Services to provide services to end users with whom United States citizens may not do business.
For further information about United States export laws, you may visit the United States government’s portal to exporting and trade services at http://www.export.gov/exportcontrols.html.
Privacy
Titanium Servers privacy policy may be found at http://www.titaniumservers.com.
While Titanium Servers is concerned with the privacy of on-line communications and websites, the Internet is no more secure than other means of communications. You should assume that all on-line communications are insecure. Titanium Servers is not responsible for the security of any information transmitted over its Services, unless it has expressly agreed to do so. Such an agreement must be in writing and signed by an authorized officer of Titanium Servers.
IP Addresses
In connection with your use of Titanium Servers Services, you may only use IP addresses that are assigned to you by Titanium Servers. If you use IP addresses that are not assigned to you by Titanium Servers, Titanium Servers will suspend your Services from network access until such time as the IP address overlap is corrected. Titanium Servers owns all IP addresses that may be assigned to you by Titanium Servers. Titanium Servers may, in its sole discretion, change these numbers from time to time without notice to you.
Certain Restrictions Applicable to Shared Customers
If you are the registered owner of an Titanium Servers shared account:
Your Services may not be transferred or used by anyone other than you. You may not sell, lease or assign the Services or any part of the Services to any party not named in Titanium Servers records. You may allow ftp access and host websites for your end customers without violating this AUP.
When you utilize an excessive amount of system resources, Titanium Servers reserves the right to place CPU process limits on your account to prevent disruption of Titanium Servers Services to other customers. Titanium Servers reserves sole discretion to determine what constitutes excessive usage of system resources.
Certain Restrictions Applicable to Dedicated Customers
If you are the registered owner of Titanium Servers dedicated server account:
You are solely responsible for any breaches of security affecting servers under your control. If your server is involved in an attack on another server or system, it may be shut down and Titanium Servers may launch an investigation to determine the cause and source of the attack. In such an event, you are responsible for all costs to rectify any damage done to your server and any other requirement affected by the security breach. You acknowledge and agree that Titanium Servers will not be liable to you or your end users for any loss or corruption of data or information, inability to access the Internet or Titanium Servers Services or inability to transmit or receive information as a result of any actions taken by Titanium Servers in response to such security breaches. This foregoing sentence may not be construed to diminish or amend any limitations of liability, or restrict the applicability of such limitations, as to Titanium Servers that are set forth in the Terms of Service or any other agreement between you and Titanium Servers.
No Credits or Refunds for Suspension and/or Termination of Services
Titanium Servers does not issue credits or refunds for outages incurred as a result of its decision to suspend or terminate its Services for a violation of this AUP. You agree to indemnify, defend and hold harmless Titanium Servers from any claims by your end users and any third party that they have been damaged by reason of such suspension or termination of Titanium Servers Services.
Monitoring of Services; Cooperation with Law Enforcement; Legal Documents
You are solely responsible for ensuring that materials disseminated or posted using Titanium Servers Services comply with this AUP and all applicable laws and regulations. Titanium Servers does not review, edit, censor or take responsibility for any information you, other customers or your end users may create.
Titanium Servers may disclose information, including information that you may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation or governmental request. Titanium Servers assumes no obligation to inform you that such information has been provided and, in some cases, may be prohibited by law from providing you with notice.
On occasion, Titanium Servers may have a need to communicate with you about issues that relate to billing, service changes, additions and modifications to its Services. Titanium Servers may choose the method of such communication in its sole discretion. The preferred method of communication is via e-mail.
It is your responsibility to provide and check the account and contact information, including a required valid e-mail address, that you provide to Titanium Servers during the sign-up process. It is your responsibility to inform Titanium Servers promptly of any changes to your account or contact information. Titanium Servers has no responsibility for communications that are misdirected as a result of your failure to provide Titanium Servers with updated contact information.
ACCEPTED BY COMPANY