Alterascape LLC (“Alterascape”), a Florida limited liability company, through its division, Alterascape, provides services to its customers subject to the following Terms of Service ("TOS"). All purchasers and users of Alterascape's Services agree to comply with the most current version of the TOS, as posted on Alterascape’s Web Site from time to time. By purchasing and/or using Alterascape’s Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of the TOS and any other policies or agreements made part of this Agreement by reference. You agree that Alterascape may update, update and amend from time to time and in its sole discretion with or without notice, these TOS and any other policies incorporated by reference into the Agreement. Any modified TOS or other polices are effective upon posting at Alterascape’s Web Site. These TOS set forth the terms and conditions of Your use of Alterascape’s services (“Services”) and explains Your obligations to Alterascape and Alterascape’s obligations to You in relation to Alterascape’s Services.
Except as otherwise defined in this Agreement, the following capitalized terms as used in herein have the meanings specified below:
- “Additional Services” means any Services Alterascape provides to You that are not expressly included with Your Order, services in excess of or beyond the scope of the monthly limitations set forth in Your Order, and any additional Services performed for you by Alterascape. Alterascape provides all Additional Services subject to these terms and conditions.
- “Acceptable Use Policy” or “AUP” means the Alterascape Acceptable Use Policy as posted from time to time by Alterascape at http://www.alterascape.com/acceptable.php. The Acceptable Use Policy is incorporated herein by reference.
- “Agreement” means the contract created between You and Alterascape for the provision of Services consisting of an Order Form and these Terms of Service, and any other policies posted on Alterascape’s Web Site from time to time which are hereby incorporated herein by reference
- “Customer Content” means all data, graphics, text, names, marks, logos, hypertext links to other web sites and other data and information incorporated in, transmitted through or published or displayed by You or an End User via Alterascape’s Services.
- "Customer Data" means all applications, supporting data files and data structures which are loaded by Customer onto the Dedicated Server or which otherwise reside on the Dedicated Server as a result of such Customer's use of the Services and also includes any information which is transferred by or stored by You or an End User via Alterascape’s services
- “Data Center” means Alterascape's network and data center facility located at 3600 Commerce Boulevard, Kissimmee, Florida 34741.
- "Dedicated Server" means the Physical Server space, Operating System services and any other software services as may be described in the Order
- “End User” means a Your customer(s), if any.
- “Alterascape Support” means Alterascape’s online customer support system located at https://support.alterascape.com/.
- “Alterascape Technology” means proprietary technology (whether owned by Alterascape or licensed to Alterascape from a third party),including, without limitation, services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Alterascape Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
- “Alterascape's Web Site” means each of the following www.alterascape.com and www.alterascape.net
- “Operating System” will mean the operating system(s) for the Dedicated Server, if and as set forth in the Order.
- “Order” means the Services and fees described in the Order Form You submit to Alterascape for Services, whether such Order is submitted online through Alterascape's Web Site , on a written Order form, or a telephone order confirmed via Alterascape’s email.
- “Entity” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
- "Physical Server" means the serving computer and related hardware which are owned by Alterascape and used to provide any Dedicated Server Services as described in Order.
- “Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Entities who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
- “Service” or “Services” means all services provided to You by Alterascape as expressly described in the Order Form submitted by You and accepted by Alterascape and any additional services provided to You by Alterascape. All Services are provided subject to these terms and conditions.
- “Service Fees” means the fees charged to Customer for the Services.
- “Software” means any software Alterascape provides to You for use solely in connection with the Services.
- “Terms of Service” and “TOS” means these Terms of Service, as the same may be modified, altered or amended from time to time by Alterascape.
- “You,” “Your,” and “Customer” means the individual or entity (through its authorized representative) that submits an Order for Services which is Accepted by Alterascape and any user to whom Alterascape provides Services.
2. ORDER, ACCEPTANCE AND SERVICE.
When Accepted by Alterascape, the Order You submit creates binding contract between You and Alterascape, consisting of the Order and these TOS. Your Order is “Accepted” by Alterascape when You receive an electronic or other written confirmation of Your Order or Alterascape processes your initial payment for Services, whichever occurs first.
3. TERM AND TERMINATION.
- Unless otherwise specified in the Order, the initial Term of this Agreement will commence on the date Alterascape accepts the Order and will consist of an approximately seven- day implementation period followed by one calendar month. Your first billing cycle shall commence on the day after the expiration of the implementation period (the “Billing Date”) and will continue for one calendar month from the Billing Date. Alterascape shall use best efforts to begin providing Services to you on or before the expiration of this implementation period. Thereafter, beginning one calendar month from the Billing Date, this Agreement will automatically renew for successive one month Terms unless the Agreement is earlier terminated in accordance with these TOS or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term. Unless otherwise specified, “Term” will include the initial Term and any renewal Term. The foregoing notwithstanding, Alterascape shall not be under any obligation to begin performance under this Agreement until it has received payment for the initial Term.
- Either party may terminate this Agreement immediately with notice to the other party upon the occurrence of any one or more of the following events: (i) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection 3(c) below), and if capable of cure, such breach remains uncured ten (10) days after the non-breaching party gives written notice thereof to the breaching party; or (ii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.
- Alterascape may terminate this Agreement (i) if the Services are prohibited by applicable law, or become unfeasible or impractical for any reason, by giving You as much prior notice as reasonably practicable or (ii) immediately by giving notice to You, if Alterascape determines in good faith that Your use of the Services violates or may violate the AUP and/or these TOS or (iii) You fail to pay any amount payable hereunder when due.
- Except as otherwise provided herein, upon termination of this Agreement for any reason, neither party will have any further rights or obligations under this Agreement. The provisions of this Sections 3(d), 7, 8, 9, 10, 13 and 19 of this Agreement will survive the termination of this Agreement 7for any reason whatsoever, and, notwithstanding termination of this Agreement, the parties will each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement prior to termination. Retention of pre-paid fees and termination of this Agreement will be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Alterascape may be entitled. Upon such termination, Alterascape may remove or delete any or all of Your electronically stored data from Alterascape's Data Center without any liability to Alterascape.
4. ACCEPTABLE USE POLICY.
You agree to abide by, and utilize the Services only in compliance with, the Acceptable Use Policy You will impose the AUP on Your customers and End Users to the extent necessary to ensure their compliance.
5. TAXES AND PAYMENT.
- 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 for use in connection with the Services hereunder (excluding any tax on Alterascape's net income). You agree to pay such tax(es) which will be added to your Monthly Recurring Charge (“MRC”) or Supplemental Charges as separate fees. Applicable state and local sales tax will be added to the MRC and Supplemental Charges for Florida customers.
- Alterascape will provide the Services and you agree to pay for such Services as set forth in these TOS and the Order. You will pay all fees for the initial Term of service in advance upon Alterascape's Acceptance of Your Order. This initial payment will include the one-time, non-refundable Set-up Fee and the monthly recurring charge (the “MRC”) for the Services expressly included in the Order. Thereafter, the MRC is payable one month in advance and charged automatically to Your credit card on file with Alterascape on the Billing Date of each month.
- You agree that any additional charges or fees assessed under this Agreement, including without limitation, charges for Additional Services, (collectively “Supplemental Fees”) will be charged to Your credit card on file in arrears on the Billing Date of each month for all such Supplemental Fees incurred during the previous month. If, in any given month, You exceed the data transfer allotment, bandwidth amount, storage space, or other pre-paid Services allotment as set forth in the Order, or Your use of the Services is otherwise excessive, Alterascape will charge You for such overage and any such fees will be added to the next invoice along with other Supplemental Fees. In addition, Alterascape may in its sole discretion and upon notice to You, (i) require You to make additional monthly or other periodic payments for such increased usage level in advance of provision of the Services from that point forward; (ii) require You to reduce the usage of resources to an acceptable level; (iii) require You to upgrade Your monthly service plan to one which includes an increased usage allotment; and/or (iv) discontinue Services or disconnect Your Dedicated Server from the network to prevent such activities from causing deterioration in network performance for other users. The provisions of the preceding sentence apply regardless of the cause of such overage, even if hacker activity or other third party activity caused the overage. You are responsible for maintaining an awareness of usages levels. Alterascape will be the sole arbiter of what is excessive usage. Any accounts deemed to be adversely affecting network integrity or server performance will be shut down without prior notice. Upon thirty (30) days' notice to You, at any time during any Term, Alterascape may Increase pricing for any of your then recurring services. Alterascape may change the pricing of its Additional Services at any time upon notice. All fees are to be paid in US Dollars, fully earned when due, and non-refundable when paid.
- Alterascape has no obligation to provide Services until initial payment has been received. After payment for the initial Term, You agree to pay for all the Services by credit card, unless otherwise agreed to in writing by Alterascape. Anything in this Agreement to the contrary notwithstanding, if Alterascape terminates Services due for Your material breach of this Agreement, You will pay immediately all fees and costs accrued before the termination date and any other amounts You owe to Alterascape under this Agreement.
- Invoices are issued as a courtesy. You agree to pay all fees owned to Alterascape when due. Any payment not paid when due will, at Alterascape's option, bear interest at a rate of 1.5% percent per month from the date due until paid or be subject to a $50.00 late fee for each month such amount remains unpaid, whichever amount is greater. If Alterascape collects any payment due through an attorney or under advice therefrom or through a collection agency, or if Alterascape prevails in any action to which You and Alterascape are parties, You agree to pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Alterascape's reasonable attorneys' fees. The following processing fees will be incurred by You as follows:
- Check returned for insufficient funds: $35.00
- Credit card chargeback: $35.00
- Charges for amounts due hereunder are denied by your credit card company for any reason: $35.00
In its sole discretion and in addition to any other available remedy, Alterascape may suspend the Services upon Your failure to pay fees when due (including without limitation, all interest, processing fees, and late fees) without or without prior notice. To reinstate Your account and resume Services, a new set-up fee will be incurred at the then current rates, subject to approval of credit. If Alterascape terminates this Agreement because of a breach, You will be charged in full for the entire month in which the breach occurred.
6. YOUR RESPONSIBILITIES.
- You must provide and are responsible for all telecommunications, computer, hardware and software equipment and services necessary to access Services. Delays in performance of Your obligations under this Agreement will extend the time for Alterascape's performance of its obligations that depend on Your performance on a day for day basis. Specifications for the hardware and software used by Alterascape to provide the Services will be available on Alterascape's Web Site or upon request. You will periodically access Alterascape's Web Site to determine if Alterascape has made any changes thereto. Alterascape makes no representations, warranties, or assurances that Your telephone, computer, hardware and software equipment will be compatible with Alterascape's Services. Alterascape will not be responsible for any damages to Customer Content, Customer Data or other damages or any malfunctions or service interruptions caused by any failure of Customer Content or hardware or software to be compatible with the hardware and software used by Alterascape to provide the Services.
- You agree to cooperate fully with Alterascape in connection with Alterascape's performance of the Services.
7. REPRESENTATIONS AND WARRANTIES.
You hereby warrant and represent to Alterascape that: (a) Your use of the Services and/or Your publication and display of Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Entity, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Entity, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (b) You are the owner or valid licensee of the Customer Content and each element thereof, and You have secured all necessary consents, licenses, permissions, waivers and releases for the use of Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Alterascape to pay any residuals, fees, guild payments or other compensation of any kind to any Entity; (c) You have used best efforts to ensure that Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; (e) You have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement; and (f) You will comply with all applicable federal, state, international or local laws, regulations, ordinances, or treaties applicable to Your use of the Services and Your performance of this Agreement, including without limitation laws governing technology, software and trade secrets. You will be responsible for loading Customer Data and You warrant that the Customer Data will not adversely impact the any Alterascape equipment or systems or violate any rights of any third parties.
Alterascape will use its best efforts to provide uninterrupted Internet Access except for interruptions in service caused by scheduled maintenance periods, or by circumstances beyond Alterascape's control, including without limitation, terrorism, acts of nature, or third-party equipment or transmission failures, or security breaches.
8. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES.
Alterascape represents and warrants that its services will be performed in a professional, workmanlike manner. The foregoing warranty will not apply to performance issues or defects in the Services (i) caused by factors beyond Alterascape's reasonable control; (ii) that resulted from any actions or inactions of You or any third parties; or (iii) that resulted from Your equipment or any third-party equipment not within the sole control of Alterascape. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, Alterascape MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND Alterascape HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ALL SERVICES AND/OR SOFTWARE PROVIDED TO YOU HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER LIMITATION OF LIABILITY AND DAMAGES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND/OR SOFTWARE IS AT YOUR OWN RISK.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT AND UNDER NO THEORY OF LAW OR EQUITY, WILL Alterascape, Alterascape'S MANAGERS, OFFICERS, ATTORNEYS, EMPLOYEES, CONTRACTORS, AGENTS, MEMBERS, SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, OR LICENSORS BE LIABLE FOR ANY LOST PROFITS OR REVENUES, LOSS OF A DOMAIN NAME, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICE(S), OR FOR ANY CLAIM AGAINST YOU BY A THIRD PARTY, REGARDLESS OF WHETHER Alterascape HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES. Alterascape WILL FURTHER NOT BE LIABLE FOR ANY DAMAGES OR RESULT FROM DEFECTS, OMISSIONS, INTERRUPTIONS, MISTAKES, DELETIONS OF FILES, ERRORS, DELAYS, SUSPENSION, OPERATION, OR TRANSMISSION OR FAILURE OF PERFORMANCE WHETHER OR NOT LIMITED TO ACTS OF NATURE, THEFT, COMMUNICATION FAILURE, HARDWARE OR SOFTWARE MALFUNCTION,DESTRUCTION OR UNAUTHORIZED ACCESS TO Alterascape'S RECORDS, PROGRAMS OR SERVICES. YOU ACKNOWLEDGE THAT THIS PARAGRAPH WILL APPLY TO ALL CONTENT ON Alterascape'S SERVERS, ANY PHYSICAL SERVER, HARDWARE, SOFTWARE, COMPUTER, OR PAPER FILES THAT Alterascape MAINTAINS, PROVIDES, OPERATES OR STORES. Alterascape CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
You agree that Your exclusive remedy for all damages, losses and causes of actions whether based in contract, tort (including negligence or otherwise) or other legal theory will not (a) exceed the actual dollar amount which You paid during the month in which the cause of action arose, or (b) include any incidental, consequential, or punitive damages of any kind, including without limitation, loss of data, profit, file, time, good will, savings or revenue.
You will defend, indemnify and hold harmless Alterascape, its affiliates, members and subsidiaries (and the managers, members, officers, agents and contractors of each of the foregoing), (collectively the “Indemnitees” ), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Your breach of any representation, warranty, or covenant contained in the Agreement; (ii) Customer Content or any End User's use of Customer Content; (iii) violation by You or any of Your officers, directors, managers, employees, members or agents of the AUP, TOS, or any applicable law; (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Your domain names, Customer Content, or the use of the Services in combination with hardware, software or content not provided by Alterascape; (v) claims or actions by third parties relating to or arising out of Your use of the Services; (vi) any failure of Customer Content to be compatible with the hardware or software used by Alterascape to provide the Services, including any damage to Alterascape's servers or other hardware caused thereby; and or Your failure to provide accurate, complete, and current information to Alterascape.
11. SUSPENSION/DEACTIVATION OF SERVICE.
If Alterascape's determines, in its reasonable discretion, that You or a third party has used the Services fraudulently, unlawfully, unethically, or abusively, or has violated any of the restrictions contained in these TOS or the AUP, Alterascape may immediately suspend, deactivate or discontinue and any or all of the Services and Your access thereto. Such suspension, deactivation, or discontinuation will be without liability of any kind to Alterascape. Although Alterascape will make reasonable efforts to alert You to activity prohibited by this Agreement and allow You an opportunity to cure such activity within a 12-hour period after discovery, Alterascape is not required to give such notice if, in Alterascape's discretion, Your use is or results in fraudulent, unlawful, unethical, or abusive activities. If a Dedicated Server is disabled or Services are suspended or deactivated, You will not be relieved of any of Your payment obligations under this Agreement.
12. OWNERSHIP RIGHTS.
If Alterascape elects, at Alterascape's option, to provide custom Alterascape-built software to You, this software will be leased or licensed to You for use only on Your Dedicated Server on a non-exclusive basis during the Term.
13. INTELLECTUAL PROPERTY.
Alterascape's trademarks, tradenames, service marks, logos, other names and marks are the sole and exclusive property of Alterascape. You may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Alterascape or in anyway misrepresent Your relationship with Alterascape. Alterascape will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Alterascape to You. Alterascape may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
14. THIRD PARTY PRODUCTS.
Mention of non-Alterascape products by Alterascape or its employees or agents is solely for informational purposes and in no way constitutes a recommendation or endorsement of such products by Alterascape.
15. MAINTENANCE AND INTERRUPTIONS.
- Alterascape may interrupt Service to perform maintenance. Alterascape will exercise reasonable efforts (i) to inform You (but such notice is not guaranteed) before interrupting Service and (ii) to repair the system promptly.
- Alterascape performs maintenance on its systems weekly on Wednesdays, between midnight and 3 a.m. Eastern Time (“Maintenance Window”). Alterascape shall not be liable for any network unavailability that may occur during this Maintenance Window.
- Except as otherwise expressly provided herein or in the Order, You are responsible for maintaining security and for the management and backup of Customer Data, Customer Passwords, Customer Content, and all upgrades and patches to any software You use in connection with the Services. Alterascape will not be liable for loss of data or for breaches in system integrity, even if Your Order includes backups, firewalls, denial of service protections, or other devices to protect system and data integrity. If Alterascape believes that security of any of Alterascape's equipment has been compromised, Alterascape may disable such equipment and the Services. After termination or suspension of Your account for any reason, or in the event hacker or third parties abuse, improper activities by You, or other network interruption not resulting from Alterascape's fault, Alterascape will not be responsible for providing any access to or copies of the data, software or content stored on the system under any circumstances and is not required to provide network access.
- If Your use of the Service causes a denial of service or in any other way injures the functioning of services Alterascape provides to other customers, Alterascape may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Your own.
- Alterascape will not be liable for service interruptions, including without limitation, interruptions executed in order to investigate suspected violations of the AUP whether or not such violations occurred.
16. LICENSE; THIRD PARTY SOFTWARE.
- You hereby grant to Alterascape a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink Customer Content; and (b) make archival or back-up copies of Customer Content although Alterascape has no duty to do so. Except for the rights expressly granted above, Alterascape is not acquiring any right, title or interest in or to Customer Content, all of which will remain solely with You.
- In connection with the Services, Alterascape may make available certain third party software to You (which may include corresponding documentation, associated software components, media, printed materials, and "online" and electronic documentation and all updates and upgrades thereto) through Alterascape’s reseller programs. Alterascape provides all such third party software subject to the terms established by the third party provider.
17. ADDING OR REMOVING SERVICES.
- You agree to pay all Alterascape fees for any Additional Services at Alterascape's then current rate. Alterascape may change the pricing of its Additional Services at any time upon notice. All requests to add or remove services must be submitted to Alterascape via email@example.com email from Your domain on fiel with Alterascape. You must provide Alterascape with any login identifications, information, passwords or other information or access to facilities that Alterascape may reasonably require to provide the change to your Services.. Alterascape will have no responsibility for any delays or increased costs or expenses associated with Your failure to provide any of such information. If You do not provide any such information or access requested by Alterascape within fifteen (15) days of Alterascape's request therefor, Alterascape may terminate the Order and retain any Service Fees paid.
- Addition/Removal of Services: Services, with the exception of bandwidth, may be added at any time. The effective date for such additional services (except for increases to monthly minimum bandwidth commitment), is the date of activation or installation, whichever occurs first. The effective date for all increases to monthly minimum bandwidth commitments will be the first day of the next Billing Date following the request for such increase. Other additional services will begin on such effective date and will be prorated based on the number of days remaining in the current Billing Cycle.
- You may remove services or decrease your service level at any time upon thirty (30) days prior notice. The effective date of such removal of services or decrease in services will be effective the first Billing Date following expiration of the thirty (30) day notice.
- If You wish to convey documents or files to Alterascape, You should deliver to Alterascape a copy or duplicate of such documents or files and not the original copy. Alterascape will not return to You any documents or files conveyed to Alterascape. Alterascape will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Alterascape's provision of Additional Services requested by You.
- If You request that Alterascape perform the Additional Services by a particular deadline or that Alterascape achieve some particular result or outcome, Alterascape will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the requested result; provided, however, that (i) Alterascape's ability to perform the Services is subject to Your provision of information and access as provided above and (ii) Alterascape has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.
You are entirely responsible all use and misuse of your account, even if a third party committed the inappropriate activity. Therefore, You must take steps to ensure that others do not gain unauthorized access to Your account. In addition, You may not use Your account to breach security of another account or attempt to gain unauthorized access to another network or server. Your password provides access to Your account. It is Your responsibility to keep Your password secure. Sharing Your password and account access with unauthorized users is prohibited. You should take care to prevent others from using Your account since You will be held responsible for such use. Attempting to obtain another user's account password is strictly prohibited, and may result in termination of service. You must adopt adequate security measures to prevent or minimize unauthorized use of Your account. You will be held responsible and accountable for any activity by third parties using Your account. You acknowledge that that all information submitted on the Dedicated Server will be considered publicly accessible. Important and private information should be protected by You. Alterascape is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that You may use.
- Governing Law; Jurisdiction; Attorney's Fees. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, will be governed by the substantive laws of the State of Florida, except that all arbitration and related proceedings conducted pursuant to Section 16(c) below, including without limitation confirmation proceedings, will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. any suit, action or proceeding concerning this agreement that is not subject to mandatory arbitration pursuant to section 16(c) below must be brought in a Florida state or federal court located in Orange County, Florida, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
- Severability. All rights and restrictions contained in this Agreement may be exercised and will be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement will be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof will constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof will remain in full force and effect.
- Mandatory Arbitration. Notwithstanding Section 15(a) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services that cannot be resolved through good faith discussions must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator, appointed in accordance with such rules. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Orlando, Florida. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
- Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior and contemporaneous communications between the parties with respect to the subject matter hereof, and this Agreement constitutes the entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between these TOS and any Order, these TOS will control. In case of conflict between any Alterascape policy and these TOS, these TOS will control.
- Independent Contractor. Alterascape and You are independent contractors and nothing contained in this Agreement places Alterascape and You in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever. e
- Notices. All notices required or permitted to be given must be in writing and will, unless specifically provided otherwise herein, be provided via email with a confirmation copy sent by regular mail. All notices will be deemed duly given as of the date of receipt (or refusal) of delivery of the notice when sent to the Parties' respective addresses. If to Alterascape, all notices shall be addressed to Alterascape Legal Department, 3600 Commerce Boulevard, Kissimmee, Florida, 34741 or http://www.alterascape.com/contact.php. Notices to You are properly sent by Alterascape when sent to Your contact email or mailing address on file with Alterascape. The Parties may change their respective addresses for receipt of notice by providing Written Notice of Address Change to the other Party as set forth herein. You may also change your mailing address or contact email address by logging into your account. Any changes made by you to your Alterascape billing account will effective upon receipt.
- Waiver. No waiver will be effective unless in writing and signed by the Party to be charged. The waiver of any right or election of any remedy in one instance does not affect any rights or remedies in another instance.
- Headings. The Headings used herein are for convenience only and will not affect the interpretation of this Agreement.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor will anything herein be construed to confer any rights, legal or equitable, in any Entity other than the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Facsimile signatures will be considered original in all respects. If this Agreement is signed electronically, Alterascape's records of such execution will be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- Government Regulations. You may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction You operate or does business.
- Monitoring. To ensure Alterascape's customers receive quality service, Alterascape randomly selects phone calls and other communications for monitoring. These communications, between Alterascape's customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner. You agree to such monitoring.
- Marketing. You agree that during the term of this Agreement Alterascape may publicly refer to You as a Alterascape customer.
- Extreme Bandwidth Packages; Bandwidth Overages. If your services include an Extreme Bandwidth Package you will receive 100 Mbps in a shared pool and the 3000 GB will consist of 1500 GB transfer in and 1500 GB transfer out. Bandwidth overages on dedicated server packages are charged monthly, in arrears, at a rate of $.50 per GB transfer, or fraction thereof, above the monthly minimum bandwidth commitment. Bandwidth overages on colocation service packages are charged monthly, in arrears, at a rate of $110.00 per Mbps or fraction thereof, above the monthly minimum bandwidth commitment.
- Age. If You are an individual, Customer certifies that You are at least 18 years of age.
- Transfer, Binding Effect. Customer may not transfer or assign this Agreement without Alterascape's prior written consent. Alterascape may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without Your consent. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permissible assigns.
- All 20 Amp circuits provided by Alterascape in connection with the Services shall provide 16 Amps derated, 120 volts unless otherwise agreed in writing.
- DNS Entries. When providing information to Alterascape for DNS entries, please note that Alterascape requires all DNS entries on the Alterascape DNS Server point back to Alterascape IP addresses that are assigned to the Customer.
20. ADDITIONAL TERMS APPLICABLE TO ONLY TO DEDICATED SERVER CUSTOMERS.
- Alterascape will set up and configure one or more Dedicated Servers, as indicated on the Order, at Alterascape's Data Center and make the same available for Your Use. Alterascape is providing services only and is not leasing the Physical Server or any personal property to You. You will not obtain any right, title or interest in any Physical Server, Operating System or other software except any rights that may be granted to You by a provider of third party software
- Subject to the terms, conditions and limitations concerning bandwidth as set forth in Order, Alterascape will provide connection of the Dedicated Server to the Internet, including all telecommunications equipment and connections necessary for the Dedicated Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. . 24/7 on call technical support for Dedicated Servers includes all reboots and status monitoring. Any additional technical support will be billed at Alterascape's then current rates.
21. ADDITIONAL TERMS APPLICABLE ONLY TO USERS OF COLOCATION SERVICES
- License. Alterascape is the lessee of a facility located at 3600 Commerce Boulevard, Kissimmee, FL (the “Premises”) which contains certain space that is suitable for the placement and operation of telecommunications network, data network and/or computer equipment (the “Equipment Space”). Alterascape hereby grants to You, as a colocation Customer, a nontransferable, revocable license to use and occupy designated Equipment Space solely for the purpose of locating telecommunications network, data network, and/or computer equipment (the “Equipment”) therein upon and subject to the terms and conditions of this Agreement. This license is subject and subordinate to the terms and provisions of Alterascape’s lease of the Premises.
- Service Requests. Upon Customer’s written request, Alterascape's technical staff may perform requested technical work related specifically to the Equipment and the Equipment Space on a "time and material" basis to be billed to Customer at Alterascape’s prevailing rates. Such work and or services will be performed only at Customer’s written request submitted to Alterascape’s Network Operations Center (“NOC”) and under Customer's direction. Alterascape reserves the right to reject any such requests for technical services.
- Condition of Premises/Limitation of Liability: CUSTOMER HEREBY ACCEPTS THE EQUIPMENT SPACE IN AN "AS IS" CONDITION. Alterascape has no obligation to make alterations, improvements or additions, decorations or changes within the Equipment Space, Data Center, or any part thereof. Alterascape may be required to relocate the Equipment within its Premises during the term of this Agreement, and Customer authorizes Alterascape to take such action without first notifying Customer provided Alterascape does not disrupt or otherwise impair Customer's service. You will cooperate with Alterascape if Alterascape advises that changes to the network or power configuration are required. After reasonable notice and opportunity to cooperate, Alterascape may interrupt Services and alter power or network connections without Your participation.
- Installation. Customer’s placement of Equipment shall be subject Alterascape's installation and maintenance specifications (the "Specifications"), which Alterascape may modify from time to time. Customer shall provide to Alterascape before installation, a written proposal showing Customer’s intended placement of equipment in the Equipment Space. Such plan must be consistent with the Specifications. Customer shall not begin installation of Customer’s Equipment in the Equipment Space until Alterascape approves Customer’s installation plan. After Customer installs the Equipment, a Alterascape representative shall inspect the installation to ensure that such installation complies with Alterascape’s Specifications. Customer shall not begin operation of Customer’s Equipment in the Equipment Space before Alterascape’s inspection and written approval.
- Expenses. Upon Alterascape’s written request, Customer will reimburse Alterascape for all costs and expenses associated with placing, installing, maintaining, operating and removing the Equipment and related materials, including but not limited to, all necessary preparations required to comply with the Specifications, costs associated including but not limited to, all necessary preparations required to comply with the Specifications, costs associated with relocation or removal of the Equipment once installed, all electric, telephone and other utility charges attributable to the Equipment and related use of the Equipment Space, and all taxes or other government fees arising from or related to the performance of Alterascape' obligations under this Agreement. Customer further agrees that upon termination of this Agreement, Customer will leave the Equipment Space in as good condition as it was in at the beginning of the term of this Agreement, and will remove the Equipment and any property which is obligated or permitted to remove prior to the termination date. Pursuant to the Specifications, Alterascape will exclusively perform and manage any construction or material alterations within the Equipment Space and Premises at rates to be negotiated between the parties hereto. Any staging of equipment will be performed only in those areas designated as a Staging Area by Alterascape.
- Access: Access will be granted to the Equipment Space pursuant to Alterascape’s Data Center Access Policy, as posted at http://www.alterascape.com/datacenteraccess.php and incorporated herein by reference. Alterascape reserves the right to amend this Policy at any time. Alterascape hereby grants those individuals You designate in your Alterascape’s Support account under the “Authorized Contacts” section of Your account. You agree that Alterascape may rely on the accuracy of the information you submit to your account at Alterascape Support (the "Representatives") access, twenty-four (24) hours per day, seven (7) days per week, to the Equipment Space, subject to the terms and conditions of this Exhibit. It is Your sole responsibility for keeping such list current. You will reimburse Alterascape for all extraordinary costs incurred by Alterascape in arranging access for any third-party. Your use of the Equipment Space, installation of Your Equipment, and access to the Premises will at all times be subject to Your adherence to Alterascape’s written policies for Data Center Access, however, EACH REPRESENTATIVE AND ANY OTHER PERSONS ACCESSING THE EQUIPMENT SPACE MUST COMPLY WITH Alterascape SIGN-IN AND INDENTIFICATION PROCEDURES FOR ANY ACCESS AND ACCESS THE EQUIPMENT SPACE AT THEIR OWN RISK AND Alterascape ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS OR DAMAGE TO PROPERTY BROUGHT BY SUCH PERSONS TO THE EQUIPMENT SPACE.
- Security: Alterascape will maintain the Equipment Space at its Premises which will be staffed at all times. Alterascape requires all visitors to the premises to sign a sign-in sheet and specify the reason for their visit. You acknowledge that Alterascape will allow representatives of colocation customers unlimited and unsupervised access to their respective equipment spaces, and such equipment spaces may be located with and immediately accessible to other customers’ equipment spaces, including Your Equipment Space. Alterascape will take reasonable measures to protect the security of each customer’s equipment space and equipment, including the measures described in this Section.
- Liability. Customer will be liable to Alterascape, Landlord, other colocation Customers, and the respective officers, directors, suppliers, agents, employees and consultants of each of the foregoing for any losses, damages or costs resulting from the actions or inactions of Customer, Representatives, Customer’s agents or employees, relating to or arising under this Agreement, including damage caused by Customer's Equipment or resulting from Customer's access to the NOC or Equipment Space.
- Removal. Prior to Customer’s removal of any Customer Equipment located on the Premises, Customer must provide Alterascape with prior Written Notice. Before Alterascape will release Customer Equipment to a third-party, Customer will provide Alterascape with prior Written Notice explicitly providing the identification of the third-party to whom the Equipment should be released and the date such release of Equipment is authorized.
- Not a Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of real or personal property. Customer acknowledges and agrees that it has no rights as a tenant or otherwise under any Applicable Laws. Upon termination of this Agreement for any reason, Alterascape will have the right to remove immediately all of Customer's Equipment located at the Equipment Space.