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Terms
of Service
In this TOS, Cernax refers to the hosting
division of SAAR, LLC.
This AGREEMENT (the "Agreement") is made and
entered into between SAAR LLC ("Host") and you ("Client")
(each being referred to individually as a "Party" and
collectively as the "Parties"). By registering for an
account with Cernax Hosting you agree to all of the terms and conditions
contained in this agreement:
Services
Hosting Services
Host agrees to provide Client with services for hosting of a site
on the World Wide Web portion of the Internet (the "Web Site")
as set forth or described in the Pricing Schedule contained on Cernax.com.
Host shall provide the Hosting Services so that the Web Site is
accessible to third parties via the World Wide Web portion of the
Internet as specified herein. Except as expressly provided herein,
Client agrees that Host is responsible only for providing the Hosting
Services, and Host is not responsible for providing any services
or performing any tasks not specifically set forth in the Pricing
Schedule. At the time of execution of this Agreement, to the extent
that Client wishes to receive from Host Additional Services the
arrangements for their provision shall be set forth in a separate
addendum to this Agreement which is duly executed by the Parties
(the "Services Addendum"), and the Services Addendum shall
be incorporated into, and become a part of this Agreement. (The
Hosting Services and the Additional Services will hereinafter be
referred to collectively as the "Services").
Content
Client shall be responsible for maintaining its own content via
FTP (file transfer protocol). Client also assumes responsibility
for backups including, but not limited to, their website and email.
Host will provide backup in accordance with industry accepted standards
of due diligence, but does not guarantee the integrity or usability
of these backups.
Availability of Web Site
The Web Site shall be accessible to third parties via the World
Wide Web portion of the Internet twenty-four (24) hours a day, seven
(7) days a week, except for scheduled maintenance and required repairs,
and except for any loss or interruption of Hosting Services due
to causes beyond the control of Host or which are not reasonably
foreseeable by Host, including, but not limited to, interruption
or failure of telecommunication or digital transmission links and
Inter-net slow-downs or failures.
99.5% Uptime Guarantee
In the event of any loss or interruption of Hosting Services, Client's
sole and exclusive remedy and Host's sole and exclusive liability
for any loss or interruption of Hosting Services shall be as follows:
for loss or interruption of Hosting Services which is due to (i)
causes other than scheduled maintenance and required repairs, or
(ii) causes beyond the control of Host, or (iii) causes which are
not reasonably foreseeable by Host, including, but not limited to,
interruption or failure of telecommunication or digital transmission
links and Internet slow-downs or failures, which loss or interruption
of Hosting Services lowers uptime below 99.5% for the total month,
Client shall receive a credit against future Hosting Services equal
to 5% of the monthly fee for every hour of downtime, not including
overage fees, domain registration fees or software licensing costs,
not exceeding the total amount of Hosting Service fees paid by the
Client to the Host in the previous month.
Domain Name Registration
As part of the initial Hosting Services, Client shall provide Host
with a registered domain name, or Host shall register domain name(s)
selected by Client provided that such domain name is available for
registration and does not violate any ICANN or other registration
services' policies, or any law or regulation. Client agrees to promptly
reimburse to Host any fees paid by Host to a domain-name registrar
or other registration services with respect to the registration
and maintenance of such domain name.
Domain Name Disputes
Host shall not be liable for any domain-name disputes which Client
may enter into or otherwise encounter. Such disputes shall be governed
by the relevant ICANN dispute procedures adopted by the domain-name
registrar with which Client's domain-name has been registered.
Additional Storage and Transfer
In the event that the Web Site requires storage and transfer on
the Host Server which exceeds the amount of storage included in
the Hosting Services, Client may, upon two (2) days written e-mail
notice to Host, request that Host (a) upgrade the level of Hosting
Services, or (b) acquire additional incremental storage to be included
in the Hosting Services, on a time and materials basis and in accordance
with the Pricing Schedule hereto. Host shall review all such requests
and determine, in consultation with Client, whether it can reasonably
comply with such requests and, if so, Host shall propose a procedure
and budget for complying with such request.
Client Content
Client assumes sole responsibility for (a) acquiring any authorization(s)
necessary for hypertext links to third party web sites, (b) the
accuracy of materials on the Web Site, including, without limitation,
Client Content, descriptive claims, warranties, guarantees, nature
of business, and address where business is conducted, and (c) ensuring
that the Client Content does not infringe or violate any right of
any third party. Notwithstanding the foregoing, Host reserves the
right, in its sole discretion, to exclude or remove from the Web
Site any hypertext links to third party web sites, any Client Content
on the Web Site, or other content not supplied by Host which, in
Host's sole reasonable discretion, may violate or infringe any law
or third party rights or which otherwise exposes or potentially
exposes Host to civil or criminal liability or public ridicule,
provided that such right shall not place an obligation on Host to
monitor or exert editorial control over the Web Site.
Limitations on Client Content
Client shall place only content that does not contain any materials
which are obscene, threatening, malicious, which infringe on or
violate any applicable law or regulation or any proprietary, contract,
moral, privacy or other third party right, or which otherwise exposes
Host to civil or criminal liability. Any such materials placed on
the Web Site which do not satisfy the foregoing requirements shall
be deemed to be a material breach of this Agreement.
Resource Usage
Client may not initiate the following on our servers:
- any process that requires more than 8Mb of memory space, more
than 30 CPU seconds, or use more than 5% of all available system
resources at any time;
- any type of interactive real-time chat applications that require
server resources;
- stand-alone, unattended server-side processes at any point
in time on the server;
- any software that interfaces with an IRC (Internet Relay Chat)
network; and
- remote access to databases located on the Host's servers without
written approval.
Spam
Client shall not send bulk e-mail, commonly know as spam, from or
through their account. Any use of Client's account to send bulk
e-mail shall be a material breach of this agreement and shall be
grounds for immediate cancellation of Client's account without notice.
Any charges related to spam will be charged to the customer.
Refusal or discontinuation of service
Host reserves the right to refuse or discontinue service to anyone
at Hosts's sole discretion. Host may deny you access to all or part
of the service without notice if you engage in any conduct or activities
that Host in its sole discretion believes violates any of the terms
and conditions in this agreement. Host shall have no responsibility
to notify any third-party providers of services, merchandise, or
information, nor any responsibility for any consequences resulting
from such discontinuance or lack of notification. You agree that
Host has the right to monitor the service electronically from time
to time and to disclose any information as necessary to satisfy
the law, or to protect itself or its subscribers. Host reserves
the right to refuse to post or to remove any information or materials,
in whole or in part, that, in its sole discretion, are unacceptable,
undesirable, or in violation of this agreement. Host also reserves
the right to refuse refunds in cases where Host believes abuse has
taken place.
Fees
Hosting Services Fees
Client shall pay Host all fees for the Hosting Services in accordance
with the applicable fee and payment schedule set forth in the Pricing
Schedule hereto. Host expressly reserves the right to change its
rates charged hereunder for the Services during any Renewal Term
(as defined herein).
Late Payment
Host may terminate service when Client's payment is late and shall
not be responsible for maintaining any data Client may have uploaded
to Host's server. Host reserves the right to suspend the Client's
services after 72 hours if payment is not received or no other arrangement
has been made. Upon account suspension, Host is not responsible
in any way for Client's data. Host reserves the right to require
a re-activation fee of 15 USD to cover administrative and processing
fees. Exceptions may be made at the Host's discretion if Host is
notified IN ADVANCE of any late payments.
Money Back Guarantee
Each plan includes a full 10-days money back guarantee. If Client
is not completely satisfied with Host's services within the refund
time period of 7 days, then Client will be given a full refund of
the contract amount excluding overages. No refund is available after
that period. This policy does not apply to any additional services
such as overages, disk space, bandwidth, maintenance fees, etc.
Accounts cancelled/terminated for violating the Terms Of Service
do not qualify for the 7-day money back guarantee. Only first-time
accounts are elegible for a refund.
Disclaimer of Warranty
HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification
A. Client
Client agrees to indemnify, defend, and hold harmless Host, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees,
to the extent that such action is based upon a claim that: (i) if
true, would constitute a breach of any of Client's representations,
warranties, or agreements hereunder; (ii) arises out of the negligence
or willful misconduct of Client; or (iii) any of the Client Content
to be provided by Client hereunder or other material on the Web
Site infringes or violates any rights of third parties, including
without limitation, rights of publicity, rights of privacy, patents,
copyrights, trademarks, trade secrets, and/or licenses.
B. Host
Host agrees to indemnify, defend, and hold harmless Client, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees,
to the extent that such action arises out of the gross negligence
or willful misconduct of Host.
Notice
In claiming any indemnification hereunder, the indemnified Party
shall promptly provide the indemnifying Party with written notice
of any claim which the indemnified Party believes falls within the
scope of the foregoing paragraphs. The indemnified Party may, at
its own expense, assist in the defense if it so chooses, provided
that the indemnifying Party shall control such defense and all negotiations
relative to the settlement of any such claim and further provided
that any settlement intended to bind the indemnified Party shall
not be final without the indemnified Party's written consent, which
shall not be unreasonably withheld.
Limitation of Liability
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT'S DATA FILES, PROGRAMS
OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST
SHALL HAVE NO LIABILITY WITH RESPECT TO HOST'S OBLIGATIONS UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF
HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL
BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS
AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH
SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION
IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS,
AND OTHER TORTS.
Termination and Renewal
Term
This Agreement shall be effective when signed and Clients assent
by virtue of clicking the button or checkbox at the bottom of this
agreement shall constitute signing by the Parties and thereafter
shall remain in effect unless earlier terminated as otherwise provided
in this Agreement (the "Initial Term"). This Agreement
shall automatically be renewed beyond the Initial Term for additional
one(1) year terms (each, a "Renewal Term") unless Client
provides Host with a written notice of termination at least thirty
(30) days prior to the expiration of the Initial Term or the then-current
Renewal Term.
Termination
Host may terminate this Agreement at any time and for any reason
by providing written notice of termination to Client and refunding
a pro rata portion of fees paid to Client for Hosting Services not
yet rendered on the date of termination.
Termination and Payment
Upon any termination or expiration of this Agreement, Client shall
pay all unpaid and outstanding fees through the effective date of
termination or expiration of this Agreement.
Entire Agreement
This Agreement and Schedules referenced herein constitute the entire
agreement between Client and Host with respect to the subject matter
hereof and there are no representations, understandings or agreements
which are not fully expressed in this Agreement.
Force Majeure
Except for the payment of fees by Client, if the performance of
any part of this Agreement by either Party is prevented, hindered,
delayed or otherwise made impracticable by reason of any flood,
riot, fire, judicial or governmental action, labor disputes, act
of God or any other causes beyond the control of either Party, that
Party shall be excused from such to the extent that it is prevented,
hindered or delayed by such causes.
Assignment
Client shall not assign, without the prior written consent of Host,
its rights, duties or obligations under this Agreement to any person
or entity, in whole or in part, whether by assignment, merger, transfer
of assets, sale of stock, operation of law or otherwise, and any
attempt to do so shall be deemed a material breach of this Agreement.
Modification and Notice
Host has the right to modify this Agreement. Any modification is
effective immediately. Client's continued use of the Host's Service
following notice of any modification to this Agreement shall be
conclusively deemed an acceptance of all such modification(s). Client's
only right with respect to any dissatisfaction with any modifications
made pursuant to this provision, or any policies or practices of
Host in providing the Services, including, without limitation, (i)
any change in the content of the Services, or (ii) any change in
the amount or type of Service Fees, is to terminate this agreement
by delivering notice to Host. Such notice will be effective upon
receipt by Host.
Waiver
The waiver of failure of either Party to exercise any right in any
respect provided for herein shall not be deemed a waiver of any
further right hereunder.
Severability
If any provision of this Agreement is determined to be invalid under
any applicable statute or rule of law, it is to that extent to be
deemed omitted, and the balance of the Agreement shall remain enforceable.
Counterparts
This Agreement may be executed in several counterparts, all of which
taken together shall constitute the entire agreement between the
Parties hereto.
Headings
The section headings used herein are for reference and convenience
only and shall not enter into the interpretation hereof.
Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action
by either Party hereto is required by any provision of this Agreement,
such action shall not be unreasonably delayed or withheld.
Survival
All provisions of this Agreement relating to Client warranties,
confidentiality, non-disclosure, proprietary rights, limitation
of liability, Client indemnification obligations and payment obligations
shall survive the termination or expiration of this Agreement.
Agreement Acknowledgement
This agreement supersedes any written, electronic, or oral
communication you may have had with Host or any agent or representative
thereof, and constitutes the complete and total agreement between
the parties. Should any provision of this agreement is determined
to be invalid or unenforceable, all other provisions shall remain
in full force and effect and said provision shall be reformed only
to the extent necessary to make it enforceable. By placing and continuing
to maintain or place information on Host's servers you are stating
and acknowledging that you have read the aforementioned terms and
conditions and that you understand such terms and conditions and
agree to be bound by them.
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