Hosting Services Agreement
Effective July 15th, 2014
Effective July 15th, 2014
1. Formation and Modification of Contract
This Hosting Services Agreement, which includes Schedule A Copyright Infringement Process [Link] is entered into by you (either personally or on behalf of another person or organization) and TierraNet Inc. ("TierraNet") as part of the TierraNet Universal Terms of Service Agreement [[Link]] (collectively, this "Agreement").
This Agreement states all of the terms and conditions regarding your use of the TierraNet Hosting Services ("Hosting Services").
Your electronic acceptance of this Agreement confirms that you have read, understand, acknowledge and agree to be bound by this Agreement.
TierraNet may, in its sole and absolute discretion, and from time to time, amend all or any part of this Agreement. Amendments will become effective immediately upon TierraNet’s posting to this website, but will not be applied retroactively. Your use of the Hosting Services after amendments have been posted to this website will constitute your acceptance of this Agreement as last amended. Do not use (or continue to use) the Hosting Services if you do not agree to be bound by this Agreement as last amended.
TierraNet may occasionally elect to email you advance notice of pending amendments to this Agreement. For this and other reasons, it is important that you keep your email and other account information accurate and up-to-date in the TierraNet Control Panel.
2. Hosting Services
TierraNet offers three types of Hosting Services. You will have the right to select which Hosting Service you desire at the time you make your payment and click to accept this Agreement.
(a) Shared Hosting - you will share one or more servers and other resources with other customers, except that your website receives a unique address (DNS);
(b) Virtual Private Server ("VPS") - you will share a server with other customers; however, you will have full control over, and configuration of, your virtual space on the server, with administrator (root) access and a dedicated IP address; or
(c) Dedicated Hosting - you will have an entire server reserved exclusively for your account and usage.
Email services are included as part of all Hosting Services (although you may also elect to subscribe to email hosting as a separate service).
In addition to different amounts of disk space and bandwidth, each of the three primary Hosting Services include a variety of services within the price such as, but not limited to, WordPress, Easy Install, Statistics, Webby, Open Cart Shopping, virus protection, support, webmail services, FTB Account(s), DNS Management, MySQL Databases, and One Time Backup. For a separate fee, you may also elect optional Hosting Services including, without limitation, Website Builder, Site Backup & Restore, Hosting Migration and other custom support services.
3. Resource Usage
If your account exceeds the allocated amount of disk space and/or bandwidth that you elect, TierraNet reserves the right to: (a) suspend your account until the start of the next month, (b) suspend your account until you pay for more bandwidth or disk space, (c) terminate your account, (d) charge you an additional fee for the overages, or (e) take other actions at its sole discretion.
Unused bandwidth and/or disk space for one month cannot be carried over to the next month. You are solely responsible to monitor and comply with all TierraNet usage requirements and limits for bandwidth, disk space and other resources.
Some examples of how you affect resource use include:
1. The rate and complexity of CGI scripts you execute;
2. The rate and complexity of database queries you execute;
3. The volume and frequency you use email, FTP, control panel, and other services;
4. The size and number of files you upload to your website;
5. The number of hits your website receives; and
6. Your storage requirements, including email, database, and website storage.
4. Legal and Contractual Compliance
You agree to only use the Hosting Services and TierraNet hardware for lawful purposes. You shall not store, transmit, display or provide any content or link to any material that violates (a) any foreign, federal, state or local law, or (b) this Agreement, including the Universal Terms of Service Agreement, the Acceptable Use Terms, the Payment Terms, and other contract documents incorporated as part of this Agreement.
5. Abusive Activities
You agree that you shall not, at any time or in any way, use the TierraNet servers or your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or any other abusive activities.
Server hacking and other perpetration of security breaches is prohibited, and TierraNet reserves the right to remove websites containing information about hacking or links to hacking information.
Use of your website as an anonymous gateway is prohibited.
TierraNet prohibits the use of software or scripts to be run on its servers that cause the servers to load beyond a reasonable level, as solely determined by TierraNet.
In addition to the above and the Acceptable Use Terms [Link] included as part of the Universal Terms of Service Agreement [Link], you also agree not to engage in any unacceptable use of the Hosting Services, including without limitation, to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source, or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) use your server as an "open relay" or for similar purposes; and/or (5) engage in any other activity in conflict with the spirit or intent of this Agreement or any of TierraNet’s policies, as determined at the sole and exclusive discretion of TierraNet.
6. Rights You Grant to TierraNet
You grant to TierraNet a nonexclusive, nontransferable royalty-free, worldwide license to reproduce, distribute, publicly display, and digitally perform the content, tools and work product (such as the HTML, Java applets, CGI scripts, and ActiveX controls) for your website. You further grant to TierraNet a nonexclusive, nontransferable, royalty-free, worldwide license to use your domain name(s), trade names and other commercial designations for purposes of creating content directories and indexes.
7. Internet Protocol (IP)
TierraNet may elect from time to time to migrate its servers. As a result, even if you have a dedicated IP, you understand and agree that TierraNet may assign you one or more different IP addresses.
TierraNet does not warrant that you will be able to consistently maintain your assigned Internet Protocol ("IP") addresses.
Additionally, you understand and agree that TierraNet will at all times have the right to seek justification in connection with your use of the Hosting Services, and specifically your purchase of IP addresses. Justification is a requirement of the American Registry of Internet Numbers ("ARIN"), the organization that manages the allocation of IP resources in North America. In order to comply with ARIN’s justification policy and to prevent any IP allocation delays, you agree to provide IP usage justifications for each of the IP addresses assigned to your Services, and to provide any and all other information reasonably requested by TierraNet for the purposes of justification.
You further understand and agree that your name and justification may be disclosed to certain registries including, but not limited to, ARIN in accordance with the respective policies issued by such registries, and that all such information may be displayed publicly on the WHOIS database.
8. Storage and Security
You will be solely responsible for undertaking measures to: (a) prevent any loss or damage to your website, emails and server content; (b) maintain independent archival and backup copies of your website, emails and server content; and (c) ensure the security, confidentiality and integrity of all of your websites, emails and server content transmitted through or stored on the TierraNet servers.
TierraNet will take commercially reasonable steps to prevent unauthorized access to the content stored on TierraNet’s servers.
9. Website/Email/Server Content
You will be solely responsible for providing, updating, uploading and maintaining your website(s), email(s) and server(s) and any and all files, pages, data, works, information and materials on, within, displayed, linked or transmitted to, from or through your website(s), email(s) and server(s) including, but not limited to, trademarks and service marks, images, photographs, illustrations, graphics, audio clips, video clips, email, webmail and other messages, meta tags, domain names, copyrightable works, confidential information, software and text.
You acknowledge and agree that in the course of providing you with technical assistance and/or in the enforcement of this Agreement, TierraNet support staff may need to modify, alter or remove all or portions of your content, for which you agree to hold harmless TierraNet and its support staff.
10. Customer Representation
You represent that, at all times during the term of this Agreement:
(a) You will comply with all applicable foreign, federal, state and local laws, rules and regulations regarding the Hosting Services and your content used with the Hosting Services ("Content"), and that you will use your website(s), email(s) and server(s) only for lawful purposes.
(b) You will not at any time post, upload, display, or otherwise distribute any Content that violates this Agreement, including the Acceptable Use Terms [Link].
(c) You are the owner or valid licensee of your Content, and each element thereof, and you have secured all necessary licenses, consents, permissions, waivers and releases for the use of your content. This includes, but is not limited to, all trademarks, logos, copyrights, names and likenesses.
(d) Your use, publication and display of Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory, or common law right or any "moral right."
11. Copyright Infringement Protection
TierraNet supports copyrights by complying with the applicable provisions of the United States Digital Millennium Copyright Act, including 17 U.S.C. 512 (the "DMCA"). A partial summary of some of the relevant provisions of the DMCA are included as Schedule A [Link] to this Agreement; however, you or your attorney are responsible to fully comply with the actual detailed provisions of the DMCA.
Additionally, TierraNet may terminate accounts of repeat infringers according to the process set out in the DMCA.
The designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Robert K. Peddycord, Attorney
169 Saxony Road, Suite 205
Encinitas, CA 92024
12. Service Uptime Guarantee
TierraNet will provide Hosting Services that meet reasonable commercial standards for packet loss, accessibility, latency, availability, and throughput. If your server does not have 99.9% uptime in any month during the term of this Agreement, you may request TierraNet to receive one month of credit on your account. Approval of the credit is at the sole discretion of TierraNet. The uptime guarantee does not apply to Hosting Service interruptions caused by (a) periodic scheduled maintenance or repairs TierraNet may undertake from time to time; (b) interruptions caused by you from custom scripting, coding or the installation of third party applications; (c) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (d) causes beyond TierraNet’s reasonable control that are not reasonably foreseeable; and (e) outages related to the reliability of certain programming environments.
13. Satisfaction Guarantee
If you are not completely satisfied with the TierraNet Hosting Services within the first 30 days of the start of your service, you may request a full refund of the amount you actually paid for the applicable service. Domain name registration fees, SSL Certificates, custom services, and dedicated services are not eligible for this satisfaction guarantee.
14. Hosting Termination
Upon any expiration or termination of your Hosting Services, you shall discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Hosting Services, including pointing the domain name system ("DNS") for your domain name(s) away from the TierraNet servers.
Prior to any expiration or termination of your Hosting Services, you are responsible for moving your website and Content off the TierraNet servers. TierraNet will not transfer or FTP your website off its servers prior to expiration or termination. If you fail to move your website or server Content off the TierraNet servers prior to expiration or termination, then you acknowledge and agree all such Content will be deleted and TierraNet will not be able to provide you a copy of such Content.
You agree that if you violate any provision of this Agreement, or if TierraNet reasonably believes you violate any provision of this Agreement, TierraNet may, at its sole and absolute discretion, temporarily or permanently terminate the Hosting Services and/or this Agreement, delete problem Content, remove your website from the TierraNet servers, suspend your email, notify legal authorities, or take or omit to take any other action.
You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of any of the provisions of this Agreement.
Copyright Infringement Process
TierraNet is committed to complying with U.S. copyright law and expects you to do the same. The Digital Millennium Copyright Act of 1998 ("DMCA") provides recourse for owners of copyrighted material who believe their rights under U.S. copyright law have been infringed on the Internet.
The following notice and takedown procedures are provided for general information purposes only. If you believe your copyrights have been infringed, or if a notice of copyright infringement has been filed against you, TierraNet recommends you consult with an attorney. In order to file a notification of a claimed copyright infringement or counter-notification of a claimed copyright infringement, it is required that you follow all of the steps provided in Title 17, United States Code, Section 512.
Notification of a Claimed Copyright Infringement
If you believe your content has been copied in a way that constitutes copyright infringement, please provide TierraNet with all of the following information:
A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
(2) Identification of the copyrighted work claimed to have been infringed;
(3) Identification of the allegedly infringing copyrighted work and information reasonably sufficient to permit TierraNet to locate the material;
(4) Information reasonably sufficient to permit TierraNet to contact you, such as an address, telephone number and email address;
(5) A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
TierraNet Response to a Claimed Copyright Infringement
Upon receipt of a notification that complies with all of the foregoing requirements, TierraNet will remove or disable access to the allegedly infringing material and take reasonable steps to notify the alleged infringer in writing of the claim against him, her or it.
Counter-Claim Notification to a Claimed Copyright Infringement
In response to a notification of claimed copyright infringement, the alleged infringer may provide a counter-claim notification to TierraNet with all of the following information:
(1) A physical or electronic signature of the alleged infringer;
(2) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(3) A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(4) The alleged infringer’s name, address, and telephone number, and a statement that consents to the jurisdiction of the federal district court for the judicial district in which the alleged infringer is located, and that the alleged infringer will accept service of process from the complainant. If the alleged infringer’s address is outside of the United States, consent to any judicial district in which TierraNet may be found.
TierraNet Response to a Counter-Claim Notification
Upon receipt of the counter-claim notification, TierraNet will:
(1) Provide the complaining party with a copy of the counter-claim notification;
(2) Inform the complaining party that it will replace the removed material or cease disabling access to it within 10 business days following receipt of the counter-claim notice;
(3) Replace the removed material or cease disabling access to the material in not less than 10, nor more than 14, business days following receipt of the counter-claim notice. This is true unless TierraNet’s designated agent has received notice from the complaining party that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on TierraNet’s system or network.
TierraNet’s Designated Copyright Agent
Robert K. Peddycord, Esq.
5963 La Place Court, Suite 312
Carlsbad, CA 92008