Web Hosting Agreement / Terms of Service (ToS)

This Agreement is between Tersum, a privately held company formed under the laws of the State of California with its principal office in Sherman Oaks, CA (Tersum) and the person (individual or legal person) who signs Tersum's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Tersum's service.

Table of Contents

1. Services
2. Term
3. Payments
4. Cancellation and Early Termination
5. Law/AUP
6. Customer Information
7. Indemnification
8. Disclaimer of Warranties
9. Limitation of Damages
10. Suspension of Services/Termination
11. Resource Usage
12. Bandwidth Usage
13. Request for Customer Information
14. Back Up
15. Request for Rebuild/Restore of Hosting Package
16. Changes to Tersum's Network
17. Notices
18. Force Majeure
19. Governing Law/Disputes
20. Miscellaneous

1. Services

Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Tersum's credit approval requirements, Tersum agrees to provide the hosting services described in the Order for the fees stated in the Order.

2. Term

The initial service term of the Agreement shall begin on the date that Tersum generates an e-mail message to the Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless Tersum or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."

3. Payments

(A) Recurring Fees

Renewal notices are emailed two days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged on the day your renewal notice is sent. (ie. Your renew date is June 12th, your invoice will be sent on June 10th and your card on file will be charged June 12th) Service will be made inactive on accounts that reach 5 business days past due. All orders made with a credit card are expected to approve on the monthly renewal date each month. If the card declines then the customer is subject to a $5 one time fee on top of the monthly renewal price. Any accounts made inactive for non-payment is subject to a $5.00 reconnect charge.

(B) Non-Recurring Fees

All customers exceeding their bandwidth allowance will be sent invoices due upon receipt each month. All customers are responsible for monitoring transfer or bandwidth usage each month. Bandwidth overages are charged at $1.00 per each GB used over the allowed limit of the package. Customers have the option before their bandwidth billing cycle ends to upgrade per our a la carte upgrade option. Once your plan is upgraded you can not request a downgrade of the same plan for at least one month.

(C) Taxes

At Tersum's request Customer shall remit to Tersum's all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Tersum, regardless of whether Tersum fails to collect the tax at the time the related services are provided.

(D) 30 Day Money Back Guarantee

All new Tersum Customers are eligible for a 30 day no hassle money back guarantee on all hosting packages. A new customer is one who has never purchased a hosting package from Tersum in the past. Also if a customer purchases a 2nd, 3rd, etc. hosting package and wishes to cancel this particular package they are not eligible for a refund. Domain purchases are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee.

4. Cancellation and Early Termination

Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Tersum terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Tersum breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.

Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to Tersum or the Customer will be responsible for full payment of the following term.

The cancellation request will be subject to the following guidelines:
* Cancellation request must be submitted to the billing department
* Cancellation request must be submitted from the main email address on file with Tersum
* Cancellation request must contain the main IP address (VPS account) or main domain (shared/reseller account) of the hosting plan you wish to cancel

5. Law/AUP

Customer agrees to use the service in compliance with applicable law and Tersum's Acceptable Use Policy posted at http://www.tersum.com/c-legal.html (the "AUP"), which is hereby incorporated by reference in this Agreement.

Customer agrees that Tersum may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services.

Amendments to the AUP are effective on the earlier of Tersum's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Tersum's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Tersum and Customer regarding the interpretation of the AUP, Tersum's commercially reasonable interpretation of the AUP shall govern.

6. Customer Information

Customer represents and warrants to Tersum that the information he, she or it has provided and will provide to Tersum for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Tersum that he or she is at least 18 years of age. Tersum may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

7. Indemnification

Customer agrees to indemnify and hold harmless Tersum, Tersum's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

8. Disclaimer of Warranties

TERSUM DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW TERSUM DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.

9. Limitation of Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF TERSUM AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

10. Suspension/Termination

(a) Suspension of Service

Customer agrees that Tersum may suspend services to Customer without notice and without liability if:
(i) Tersum reasonably believes that the services are being used in violation of the AUP;
(ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
(iii) Tersum reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
(iv) as requested by a law enforcement or regulatory agency.

Customer shall pay Tersum's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination

The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Tersum fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail.

The Agreement may be terminated by Tersum prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
(i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement;
(ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Tersum describing the violation;
(iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or
(iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement.

Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

11. Resource Usage

Tersum Customers may not initiate the following (below), if any customer does Tersum may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.

a) Use 25% or more of system CPU resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
b) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
c) Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed.
d) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons (applies to shared/reseller hosting only).
e) Run any software that interfaces with an IRC (Internet Relay Chat) network.
f) Run any file sharing, bit torrent or other P2P network services, client or server software
g) Run any gaming servers such as counter-strike, half-life, battlefield1492, etc

12. Bandwidth Usage

You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.

13. Requests for Customer Information

Customer agrees that Tersum may, without notice to Customer,
(i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Tersum believes violates applicable law, and
(ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

14. Back Up Copy

Customer agrees to maintain a current copy of all content hosted by Tersum nothwithstanding any agreement by Tersum to provide back up services.

15. Request for Rebuild/Restore of Hosting Package

During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $5 one time fee will be enforced.

16. Changes to Tersum's Network

Upgrades and other changes in Tersum's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Tersum reserves the right to change its network in its commercially reasonable discretion, and Tersum shall not be liable for any resulting harm to Customer.

17. Notices

Notices to Tersum under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.tersum.com/support/. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

18. Force Majeure

Tersum shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Tersum's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

19. Governing Law/Disputes

The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN LOS ANGELES COUNTY, TERSUM, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

20. Miscellaneous

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Tersum unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Tersum's prior written consent. Tersum's approval for assignment is contingent on the assignee meeting Tersum's credit approval criteria. Tersum may assign the Agreement in whole or in part. This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.

Acceptable Use Policy ("AUP")

This AUP governs the use of Tersum's web hosting service. Violation of this AUP may result in suspension or termination of your service. In the event of a dispute between you and Tersum regarding the interpretation of this AUP, Tersum's interpretation, in its reasonable commercial judgment, shall govern. If you have any questions regarding this AUP, contact legal at tersum.com.

Table of Contents

* Offensive Content
* Unnaccepted Materials
* Security
* Bulk Commercial E-Mail
* Unsolicited E-Mail
* Material Protected by Copyright
* Copyright Infringement Notice
* Other
* Disclaimer
* Internet Abuse
* Newsgroup, Chat Forums, Other Networks

Offensive Content

You may not publish or transmit via Tersum's service any content that Tersum reasonably believes:

* constitutes child pornography;
* constitutes pornography;
* is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
* is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
* is defamatory or violates a person's privacy;
* creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
* improperly exposes trade secrets or other confidential or proprietary information of another person;
* is intended to assist others in defeating technical copyright protections;
* clearly infringes on another person's trade or service mark, patent, or other property right;
* promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
* is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Tersum; or
* is otherwise malicious, fraudulent, or may result in retaliation against Tersum by offended viewers.

Unaccepted Materials

Tersum does not accept material such as:

* Proxy scripts, Warez, Escrow, High Yield Investment Programs (HYIP), illegal Gambling and Lottery sites.

Content "published or transmitted" via Tersum's service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by Tersum.

We reserve the right to terminate service for any of the above reasons and it's at Tersum's sole discretion to issue a refund.

Security

You must take reasonable security precautions. You must protect the confidentiality of your password, and you should change your password periodically.

Bulk Commercial E-Mail

You must obtain Tersum's advance approval for any bulk commercial e-mail, which will not be given unless you are able to demonstrate all of the following to Tersum's reasonable satisfaction:

* Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure
* Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given
* You retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor recipient's and Tersum's requests to produce consent evidence within 72 hours of receipt of the request.
* You have procedures in place that allow a recipient to easily revoke their consent - such as a link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours
* You must have a Privacy Policy posted for each domain associated with the mailing
* You have the means to track anonymous complaints
* You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the "TO" line of the e-mail
* You comply with the CAN SPAM Act and other applicable law.

These policies apply to messages sent using your Tersum service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via your Tersum service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. Tersum may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.

Unsolicited E-Mail

You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it. You must comply with the rules of any other network you access or participate in using your Tersum's services.

Material Protected by Copyright

You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:

* you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner
* you are otherwise permitted by established United States copyright law to copy the work in that manner. Tersum will terminate the service of repeat copyright infringers.

Copyright Infringement Notice (Digital Millennium Copyright Act)

If you believe your copyright is being infringed by a person using the Tersum network, please send your written notice of copyright infringement to:

Tersum
4355 Sepulveda Blvd #218
Sherman Oaks, CA 91403

Your notice must include the following:

* A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
* Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site
* Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Tersum to locate the material
* Information reasonably sufficient to permit Terum to contact you, such as an address, telephone number, and, if available, an e-mail address
* A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner's agent, or the law
* 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.

Other

You must have valid and current information on file with your domain name registrar for any domain hosted on the Tersum network.

Disclaimer

Tersum is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers' activities and disclaims any responsibility for any misuse of the Tersum network. Inquiries regarding this policy should be directed to Legal dept at legal at tersum.com.

Internet Abuse

You may not engage in illegal, abusive, or irresponsible behavior, including:

* Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to Tersum and its customers) without express authorization of the owner of the system or network
* monitoring data or traffic on any network or system without the authorization of the owner of the system or network
* Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks
* Use of an Internet account or computer without the owner's authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning
* Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting
* Any conduct that is likely to result in retaliation against the Tersum network
* Use of Tersum's network in a way that unreasonably interferes with Tersum's other customers use of the network

Newsgroup, Chat Forums, Other Network

You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.