Terms Of Service
Please read through this entire document, as well as our other policy documents, before you sign up for any of our services. Ignorance of our policies does not excuse anyone from compliance.
NOTICE: Last updated 3/25/2013
Mokee Computer Technologies Serversphere.com Terms Of Service
1.0 Acceptance Of Terms
1.1 These Terms Of Service ("TOS", "Terms", "These Terms"), represent a legal agreement between you ("You", "Your", "Subscriber", "Client") and Mokee Computer Technologies, LLC ("MCT", "Serversphere.com", "Us", "We") and consists of the most recents terms and conditions held within the TOS.
1.2 Serversphere.com reserves the right to change, modify, add or remove all or part of these terms including but not limited to any term, applicable fee, policy, or guideline, at any time without acceptance by You. Serversphere.com will post notice of updates or changes to our policies on our website. Serversphere.com will not provide You individual notice of any such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to Us is updated and correct. Your continued use of the Service following any notice or posting of changed Terms will constitute Your acceptance of such changes.
1.3 By completing the Service purchase process ("Service Sign Up Process") and clicking the "I ACCEPT" button within the pages of our Service Sign Up Process, or by payment of your first invoice, you: (a) agree to be bound by these Terms; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if you are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept these Terms; (c) agree to provide true, accurate, current, and complete information during the Service sign up process, including billing and credit card related information and other account information (all together, the "Account Information"), and further You agree to maintain and update this information to keep it true, accurate, current, and complete; and (d) represent and warrant that You have the power and authority to enter into and perform under these Terms. If these Terms or any future changes are unacceptable to You, Your sole remedy is to cancel Your Service. If you do not accept and agree to these terms, do not complete the registration process or complete payment.
2.0 Description Of Services
2.1 Serversphere.com will provide You with a server, physical or virtual, for the purpose of internet activities according to a selected plan at the site Serversphere.com, in exchange for You paying a prescribed fee. Service includes access to your server. Service does not include administration unless explicity ordered and/or subscribed. Service also does not include the following activities or uses for your server: hacking, cracking, abuse of any kind. Serversphere.com will be the sole judge of abusive behavior on a case by case basis, however a general definition of abuse shall be any act involving the server that is harmful to another server, a person, a business or a web site. These entire Terms apply to You.
2.2 Serversphere.com will provide You with storage space on a separate server to create an additional copy of your existing storage space. These entire Terms apply to You.
2.3 Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Service resources, shall be subject to these Terms. New Service resources may have an extra cost associated with them and as such would only be available to You upon ordering and payment of the Service.
3.0 Term And Payment For Services
3.1 The "Term" or duration of Your service with us is defined by You ("Initial Term") during the ordering process. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide Serversphere.com with notice of termination prior to the end of the Initial Term or the Renewal Term in accordance with our Cancellation Policy, outlined below. You will pay all fees due according to the prices and terms applicable to your Services, including optional add-on features. All installation or setup fees and non-recurring charges, along with the first Term's recurring charges, shall be due and payable immediately upon Your initiation of Service.
3.2 Serversphere.com offers no money back guarantees, including setup fees. If upon your request to terminate your account we find that you are in violation of our policies, and such violations result in damages or fees assigned to Serversphere.com on your behalf, no refunds shall apply and you will be held liable for all accrued fees and subcription payments.
3.3 Termination must be made via email or support ticket with express language clearly stating your intention to cancel service. If you terminate Your Services prior to the end of the Initial Term or the Renewal Term, (a) Serversphere.com will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of Serversphere.com's standard charge for the duration remaining in the term, unless otherwise expressly provided in this Agreement.
3.4 You must request cancellation of your account within five (5) days prior to the end of the current Term or You will be required to provide the next months charges. If Your termination is enforced to due violations that result in damages or fees assigned to Serversphere.com on Your behalf, no refunds shall apply and You will be held liable for any and all such fees, including any bandwidth overage fees or any legal fees, should they be required. Serversphere.com may terminate this Agreement at any time and for any reason by providing to you written notice thirty (30) days prior to the date of termination. If Serversphere.com terminates this Agreement, Webitva.com will not be required to refund to you any portion of prepaid fees collected.
3.5 Serversphere.com, upon any request for termination of Service, reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including but not limited to order processing information, mailing lists, files, email, and any web pages generated by You or the Service. Serversphere.com accepts no liability for such deleted information or content.
3.6 Serversphere.com may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to any Service. At the time of any rate increase, Serversphere.com will provide a ten (10) day pro-rated period of Service at the original rate for any client wishing to terminate and find another Service provider needing time to find such a provider.
3.7 Client shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges ("Tax") imposed on, or with respect to, the Services under this Agreement.
3.8 If at any time, and for any reason, the total sum of the bandwidth used exceeds your allotted bandwidth allowance for either incoming or outgoing data streams, You shall be responsible for all resulting overage charges. The sole judge of bandwidth used will be data gathered by the switch located at the datacenter and will be provided to you with any and all overage invoices.
4.0 Resale of Service
4.1 Only Subscribers to our Reseller Packages are allowed to resell their Services. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of Serversphere.com.
5.0 Relationship Of Parties
5.1 This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Serversphere.com and You. Neither Serversphere.com nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
6.0 Intellectual Property Rights
6.1 You hereby grant to Serversphere.com a non-exclusive, worldwide, and royalty-free license, during the duration of Your use any Service, for Your content as necessary for the purposes of rendering and operating the Services to You under this Agreement. You expressly (a) grant to Serversphere.com a license to cache and or store materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching and or storage is not an infringement of any of Your intellectual property rights or any third party's intellectual property rights.
6.2 All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Serversphere.com or its suppliers or agents pursuant to this Agreement, and any methodologies, equipment, or processes used by Serversphere.com 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 Serversphere.com or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Serversphere.com during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software 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 Your, or any agent acting on Your behalf or through the resale of Your Service, failure to abide by the terms of this Agreement.
6.3 You hereby grant to Serversphere.com a limited right to use Your trademarks, if any, for the limited purpose of permitting Serversphere.com to fulfill its duties and or provide Your Service 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 sub-license 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 will terminate upon termination of this Agreement.
7.1 You agree to indemnify and hold harmless Serversphere.com, and its parents, subsidiaries, affiliates, cobranders or other partners, officers, directors, shareholders, employees, and agents, from any claim, demand, or investigation, including reasonable attorneys fees, made by any third party due to or arising out of Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of these Terms, including any applicable Serversphere.com Policies, law, or regulation, or any alleged violation of any rights of another, including but not limited to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service. Serversphere.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.
8.0 DISCLAIMER OF WARRANTIES
8.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SERVERSPHERE.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
(b) YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
(c) THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
(d) NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT (i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(f) SERVERSPHERE.COM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
9.0 LIMITATION OF LIABILITY
9.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVERSPHERE.COM AND ITS AFFILIATES, COBRANDERS, OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SERVERSPHERE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE.
9.3 SERVERSPHERE.COM'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO SERVERSPHERE.COM OVER THE COURSE OF THE EXISTING TERM. YOU ACKNOWLEDGE THAT SERVERSPHERE.COM HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10.0 Integration And Severability
10.1 These Terms constitute the entire agreement between You and Serversphere.com and govern Your use of the Service, superceding any prior agreements between You and Serversphere.com (including, but not limited to, any prior versions of these Terms) pertaining to Your Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or other Serversphere.com services, third-party content, or third-party software. If any provision of these Terms or incorporated documents is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.
11.0 Force Majeure
11.1 Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of Serversphere.com), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Serversphere.com is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel the Service(s), but there shall be no liability on the part of Serversphere.com
12.0 Service Level Limitations
12.1 You hereby acknowledge and agree that Serversphere.com 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.
12.2 You hereby acknowledge and agree that Serversphere.com reserves the right to temporarily suspend Your Service for the purposes of maintaining, repairing, or upgrading its hardware, systems and network. Serversphere.com will use best efforts to notify You of pending maintenance however at no time is Serversphere.com under any obligation to inform you of such maintenance.
13.0 No Fiduciary Relationship
13.1 Serversphere.com is not the agent, fiduciary, trustee or other representative of You. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.