TERM: This agreement shall govern the “Initial Term” as selected by you (the Client) during the ordering process. This agreement is automatically renewed (the Renewal Term) at the end of the Initial Term for the same period of time as the Initial Term unless written notification of cancellation is rendered to Totally Digital thirty (30) days prior to the end of the Initial Term or the Renewal Term. Any notice of cancellation will be effective following thirty (30) days after Totally Digital’s receipt thereof.
If you terminate your receipt of hosting service prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, Totally Digital will refund to the client a pro-rated portion of the pre-paid fees (excluding set-up fees, domain name registration fees, software licenses or excessive use charges) for services not yet rendered as of the termination date unless otherwise expressly provided for in this agreement.
Notwithstanding the foregoing, if you terminate your receipt for hosting services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you pre-paid for the Services, not includ ing any setup fees, domain name registration fees or software licenses. Your termination request or notice must be submitted to Totally Digital in writing. Please Contact Us and we will provide you with the necessary forms. Totally Digital may terminate service at any time. In the event that Totally Digital terminates this agreement, Totally Digital will refund to the client a pro-rated portion of the pre-paid fees (excluding set-up fees, domain name registration fees, software licenses or excessive use charges) for services not yet rendered as of the termination date unless otherwise expressly provided for in this agreement.
DEFAULT AND CURE
In the event that either Client or Totally Digital defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
CHARGES AND TAXES
The client agrees to pay for all charges attributable to their use of the services at the then current Totally Digital prices, which shall be exclusive of any applicable taxes. The client is responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Totally Digital’s net income.
All fees for Services must be paid in advance according to the then current pricing schedule of Totally Digital. Upon entering into this Agreement, the client must choose to pay either by direct charge to a credit card or debit card, or receive an invoice and submit subsequent payment. If you choose to pay by credit or debit card to pay for Services, you thereby authorize Totally Digital to charge your credit card or debit card to pay for any charges that may apply to your account. You agree that Totally Digital is not responsible for any additional fees you may incur as a result of these charges to your credit card or debit card. You must notify Totally Digital of any changes to your card account (including, applicable account number, cancellation or expiration of the account), your billing address, or any information that may prohibit Totally Digital from charging your account. If you choose to be invoiced upon registration for Services, Totally Digital will invoice you for the services applicable to the period for which you have registered for services. Totally Digital my also create additional invoices for any applicable supplemental charges associated with your use of Services. Totally Digital will provide you with a statement reflecting the accumulated charges. You agree to pay Totally Digital the amount indicated in each invoice by the due date reflected on that invoice. If you fail to pay any fees and taxes by the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half percent (1.5%) per month or the maximum allowable under applicable law but at no time less than fifteen dollars ($15) shall also become payable by you to Totally Digital. In addition, your failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and Totally Digital may suspend its performance of Services and/or terminate this Agreement. Any such suspension or termination of the Services would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including without limitation, reasonable attorney’s fees, court costs and collection agency fees.
Use of Services
APPLICABLE USE POLICY
The Totally Digital Acceptable Use Policy governs the policies and procedures for use of the Services. The Acceptable Use Policy is posted on Totally Digital web site and may be updated from time-to-time. IT IS THE CLIENTS RESPONSIBILITY TO READ THE ACCEPTABLE USE POLICY. BY USING THE SERVICES, THE CLIENT AGREES TO BE BOUND BY THE TERMS OF THE ACCEPTABLE USE POLICY AND ANY MODIFICATIONS TO THIS POLICY MADE BY TOTALLY DIGITAL. TOTALLY DIGITAL RESERVES THE RIGHT TO TERMINATE THE CLIENTS ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
Material and Product Requirements
Unless otherwise agreed upon in a separate agreement, it is the client’s responsibility to ensure all material and data placed on Totally Digital equipment is in a “server-ready” condition. Totally Digital is neither required nor responsible to make any effort to validate any of this information for content, correctness, usability or that the content is in anyway server ready. Totally Digital reserves the right to reject any material that it deems is not “server-ready” at any time. Totally Digital will notify you of its refusal of the material and allow you to modify the material to satisfy the requirements and/or needs of Totally Digital. The level of knowledge varies depending on the particular requirements of each website. It is the responsibility of the client to have the necessary knowledge and skills to create and maintain a website. It is not the responsibility of Totally Digital to provide any training or customer support outside of the Services agreed to by the Client and Totally Digital.
The client agrees that use of the services under this agreement will not exceed the bandwidth and storage usage limits agreed upon in the service plan initially ordered. Any usage above and beyond the usage limits set forth in the service plan will be billed at an additional fee and the client agrees to pay any fees associated with excessive bandwidth and storage usage. In the event of shared hosting, the client agrees that their site is on a shared server, shared with multiple websites, each sharing common resources. In the event that the client’s website is utilizing excessive server resources, including but not limited to memory and cpu time, the client may either be charged additional fees or required to upgrade to a plan that provides additional resources. In the event that excessive server resources are being utilized by the client’s website and it is affecting the performance of the server and/or the other websites stored on the same server, the client’s site may be throttled, limited or shut down in order to restore performance to the server.
INVESTIGATION OF VIOLATIONS
Totally Digital may investigate any suspected or reported violations of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, customers and/or third parties. Totally Digital will not access or review the contents of any email or stored electronic communications except as required or permitted by applicable law or legal processes or as requested by the Client.
Totally Digital reserves the right and has absolute discretion to restrict and/or remove from its equipment any content or data that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party’s rights or is potentially in violation of any laws. If Totally Digital becomes aware of any violations as outlined here, Totally Digital may take immediate actions to correct the violations, including but not limited to, issuing warnings, suspending or terminating Services, restricting or prohibiting any and all uses of content hosted on Totally Digital equipment and/or disabling or removing any hypertext links to third-party web sites, any content hosted on Totally Digital equipment or other content not supplied by Totally Digital, which, in Totally Digital’s sole discretion may violate or infringe on any law or third-party rights or which otherwise exposes or potentially exposes Totally Digital to civil or criminal liabilities or public ridicule. It is Totally Digital’s policy to terminate repeat offenders. Totally Digital right to take corrective measures, however, does not oblige Totally Digital to monitor or exert editorial control over the information made available for distribution via Services. If Totally Digital takes corrective action due to such possible violations, Totally Digital shall not be obligated to refund to client any fees paid in advance of such corrective actions and client holds Totally Digital free from any damages that may arise as a result of corrective actions.
To comply with any and all applicable laws and lawful government requests, to protect Totally Digital systems and customers, or to ensure the integrity and operation of Totally Digital business and systems, Totally Digital may access and disclose any and all information it considers necessary, including, without limitation, user profile information (name, email addresses, etc), IP addresses and traffic information, usage history, and content residing on Totally Digital systems and servers. Totally Digital reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
GRANT OF LICENSE TO TOTALLY DIGITAL
You hereby grant to Totally Digital a non-exclusive, worldwide, and royalty free license for the Initial Term and any renewal term to use your content as necessary for the purposes of rendering and operating the services to you under this Agreement. You expressly (a) grant to Totally Digital a license to cache materials distributed or made available for distribution via the services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
TOTALLY DIGITAL MATERIALS AND INTELLECTUAL PROPERTY
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Totally Digital or its suppliers or agents pursuant to this agreement, and any know-how, methodologies, equipment, or processes used by Totally Digital to provide the services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Totally Digital or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Totally Digital during the term of this agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the work of Totally Digital is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
You hereby grant to Totally Digital a limited right to use your trademarks, if any, for the limited purpose of permitting Totally Digital to fulfill its duties under this agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
Warranty and Warranty Disclaimer
CUSTOMER AND / OR THIRD PARTY ACTS
Totally Digital is not responsible in any manner for any non-conforming services to the extent caused by you or your customers. In addition, Totally Digital is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond Totally Digital reasonable control.
NO EXPRESSED OR IMPLIED WARRANTY
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY TOTALLY DIGITAL UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT TOTALLY DIGITAL EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH TOTALLY DIGITAL COMPUTERS, NETWORKS AND POINTS OF PRESENCE, OR THE INTERNET. TOTALLY DIGITAL DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED ‘AS IS’ AND WITHOUT WARRANTY AGAINST FAILURE OF COMPUTER HARDWARE OR COMMUNICATIONS SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TOTALLY DIGITAL DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPONSE TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT.
YOUR WARRANTIES AND REPRESENTATIONS TO TOTALLY DIGITAL
You warrant, represent, and covenant to Totally Digital that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) You will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party websites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
Limitation and Exclusion of Liability
IN NO EVENT SHALL TOTALLY DIGITAL HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO TOTALLY DIGITAL, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. TOTALLY DIGITAL SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF TOTALLY DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF TOTALLY DIGITAL TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO TOTALLY DIGITAL BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS 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. THE FEES FOR THE SERVICES SET BY TOTALLY DIGITAL UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE TOTALLY DIGITAL FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
INTERRUPTION OF SERVICE
You hereby acknowledge and agree that Totally Digital will not be liable for any temporary delay, outages or interruptions of the Services. Further, Totally Digital shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
You hereby acknowledge and agree that Totally Digital reserves the right to temporarily suspend services for the purposes of maintaining, repairing or upgrading its systems and network. Totally Digital will use best efforts to notify you of pending maintenance however at no time is Totally Digital under any obligation to inform you of such maintenance.
You will defend, indemnify and hold harmless Totally Digital and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnity by any person, firm, corporation, governmental authority, partnership or other entity by reason of, or, arising out of, or, relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Totally Digital; or (v) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including without limitation, defamation, libel, or violation of privacy or publicity).
HOW TO CONTACT US
If you have any questions or concerns about the Terms and Conditions, please contact us by clicking on the following link: Contact Us.
DATE LAST MODIFIED: OCTOBER 24, 2008
These Terms and Conditions may be changed at any time, without prior notice to any visitor.