Web Hosting Terms of Service


TERMS OF SERVICE | ACCEPTABLE USE POLICY

Date of Last Revision to This Agreement: November 22, 2016

The following Terms of Service (“TOS,” “Terms” or “Agreement”) apply to all web hosting services provided by MODassic Marketing (“MODassic,” “we,” “us,” or “our”) to you. These must be accepted to host with MODassic. By purchasing and/or using our hosting services you agree to this TOS.

  1. APPLICATION OF TERMS

1.1. This TOS applies to all Web Hosting Services provided by MODassic to you during the Term. This TOS consists of the following: Terms, Service Level Agreement (SLA), Fair Use Policy, and Backup policies. Collectively these documents are referred to herein as the “TOS.”

1.2. This TOS, together with your Order, represent the entire web hosting agreement relating to the Services and supersedes any web hosting agreements previously entered into between you and MODassic.

1.3. The current TOS is always available on MODassic’s website. We may alter this TOS at any time with notification to you by email. If you do not agree to any changes, you must terminate your Services within ten business days of the date of the change. Only a MODassic officer may alter this TOS. No agent of, or person employed by, or under contract with, MODassic has any authority to alter or vary this TOS. No oral explanation or oral information given by any party shall alter the interpretation of this TOS.

  1. GENERAL TERMS AND CONDITIONS

2.1. You will conform to the standards and acceptable use policies of MODassic which are set out in our AUP (Acceptable Use Policy).

2.2. You are responsible for obtaining any licenses or permissions from any third party which are required to upload content to the Services.

2.3. MODassic’s Service Level Agreement in Section A (SLA) sets out the performance you can expect from us. The SLA is your sole and exclusive remedy for Service disruptions covered by it.

2.4. The Services are provided to you as configured for our standard customer. We may update or upgrade the Services and/or any software installed on your account at any time without prior notification to you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use.

2.5. The Services are provided on as-is basis. The hardware configurations may vary. MODassic may replace your host server hardware, transfer it from one datacenter to another, transfer your account to another server or modify certain software configurations when deemed necessary by MODassic.  These differing configurations may result in slightly different performance from the Services.

2.6. The proprietary and third-party software we offer as part of the Service is provided as-is and is subject to all warranty disclaimers and limitations of liability set out herein.

2.7. We will use good faith efforts to backup data stored on the shared Services once a day (Shared Backups) and saved for 1 week. Shared Backups are intended for internal use to attempt to quickly restore a site however we cannot guarantee that a Shared Backup will be available for restore upon your request. It is your responsibility to backup data of all your content in order to prevent potential data loss.

Backup Services are provided “as-is.” You agree that you will maintain your own set of backups independent of those we maintain.

  1.  ORDERS

3.1. For ease of reference, in this TOS quoted hosting Services to purchase is referred to as an “Order.” Each Order for Services by you shall be deemed to be an offer by you to buy the Services from us subject to this TOS. The Order will provide you with an annual quote based on set amount of disk space and monthly bandwidth. The Initial Term of the Services is set out on your Order (Initial Term). Upon the expiration of the Initial Term, we shall renew your services as described in our Renewal Policy.

3.2. We are under no obligation to deliver any Services other than those identified in the Order.

  1.  PAYMENT

4.1. You are responsible for the charges set out on the Order.

4.2. Web hosting is billed annually and invoices are due within 30 days of receipt (Due Date). MODassic reserves the right to suspend the Services until payment is made. You are responsible for all taxes and fees levied on the Services.

4.4. Our obligation to provide the Services is contingent on payment of the Fees by the Due Date. Should the Services be suspended, for any reason, Fees will continue to accrue.

4.5. If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. All of your Services may be suspended during bill disputes. To reactivate your Services, you must first pay all outstanding Fees.

  1.  TERMINATION & CANCELLATION

Either party may terminate this agreement for any reason with a 30 day notice. MODassic will refund the prorated months of unused  Service left in the agreement.

5.1. Termination by MODassic

MODassic may terminate this TOS if (i) you fail to pay any invoices as they are due; (ii) in MODassic’s reasonable opinion, you do not have sufficient technical expertise to use the Services without excessive ongoing technical support; (iii) MODassic determines in good faith that continued provision of the Service has become impractical or unfeasible for technical, legal, regulatory or any other material reason; or (iv) you violate this TOS or any agreement incorporated by reference.

We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of the Service available to us, or if providing them to you becomes cost prohibitive.

  1.  TECHNICAL SUPPORT

Our technical support is available during normal business hours of Monday – Friday from 9am – 5pm for all current customers and is provided on an as-is, as available basis. If your request for technical support exceeds that of similarly situated customers we may charge you additional support fees. We will inform you, and receive your consent, prior to charging you for technical support.

All support is provided as-is and is subject to the disclaimers of warranties and limitation of liability set out in this TOS. While we will use reasonable efforts to provide technical support to you and to perform any work you request in a timely and professional manner, we cannot guarantee the result you expect or that an issue might not occur again. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors. We may refuse to perform any request that requires changes not compatible with the Services or is not related to them or might create a security risk or endanger their performance.

It is your obligation to perform and store a backup of your data and files prior to requesting technical support. In the event that you are not satisfied with the outcome of any technical support, it is your obligation to restore your files and data from your own backup.

  1.  INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS

7.1. MODassic retains ownership of all intellectual property rights in the Services. MODassic grants to you a limited license to access and use the Services. All trademarks, product names and company names or logos used by MODassic are MODassic’s property or the property of their respective owners. No permission is given by MODassic to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner’s rights.

7.2. If we have not provided a license for you to use software as part of the Services, you agree to procure appropriate licenses to use all “Required Licenses.” “Required Licenses” means any licenses, consents or approvals required to use software, hardware and other items whose use is facilitated by the Service. You agree to provide us with copies of the Required Licenses promptly following our written request.

7.3. You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by you in, or transmitted via, the Services (Objects). On becoming aware of any dispute between you and any other individual or organization regarding the Objects, MODassic reserves the right, at its sole discretion and without notice or liability to you, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.

  1.  REPRESENTATIONS AND WARRANTIES

9.1. You represent and warrant that (i) you and your End Users understand and appreciate the risks inherent to you and your business that come from accessing the Internet; (iI) you will not violate any applicable laws and/or regulations in your use of the Services; (iii) you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (iv) you will make backup copies of all information in a location independent of ours, and will not use Backup Services as your sole backup; and (v) you will pass through the terms of this TOS, and any agreements incorporated by reference, to your End Users.

9.2. WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) IS PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.

  1.  LIMITATION OF LIABILITY

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS TOS OR UNDER ANY OTHER AGREEMENT OR DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

  1.  INDEMNITY

11.1. You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.

  1.  CERTAIN INFORMATION

12.1. If a law or regulation compels disclosure of information held by us, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the Account Owner. We are not required to respond to demands by you that we provide information about your account as part of litigation. However, if we agree to do so, we will charge you administrative hourly fee for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.

  1.  NOTICES

13.1. Any notice to be given by either party to the other may be sent by email, support ticket, or recorded delivery if (i) to you, the Account Owner; or (ii) to us, as set out in paragraph 13.4. In addition, we may communicate with you using the Support ticketing system facilitated by our User Area. Notices of support tickets opened on your behalf are sent to you by email and shall be deemed received upon sending.

13.3. Termination notices must be provided to us as set out in paragraph 5.

13.4. Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:

MODassic Marketing

1221 W. Campbell #123

Richardson, TX 75080

Email: contact@modassicmarketing.com

  1.  RESOLUTION OF DISPUTES AND CHOICE OF LAW

14.1. Any dispute, controversy or claim arising under this TOS shall be resolved in accordance with the procedures set forth in this Section.

14.2. In the event of a dispute between the parties relating to this TOS, each of the parties shall appoint a designated representative who has authority to settle the dispute and who is at the “C” level or above. This appointment will take place no later than five business days after the initial request for dispute resolution. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honored.

14.3. This Agreement shall be governed in all respects by the laws of the State of Texas without regard to its conflict of laws provisions, and Client and Host agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal courts located in the Dallas County, Texas, and Client and Host hereby submit to the jurisdiction of such courts.

  1.  DEFINITIONS

“End User” is the individual or entity who uses, or to whom you provide, your services;

“Materials” means any information, reports, documents, software or other materials created by MODassic as part of the Services, including all methodologies, know-how and processes used to do so;

“Server” means the computer server equipment operated by MODassic in connection with the provision of the Services;

“Service” or “Services” means any and all services provided by MODassic under this TOS including, without limitation,, monitoring and recovery services, space hosting, web, email and usenet searching and monitoring services and professional services, and any other services requested by you which may be provided from time to time as set out on the portion of our website describing the individual Service (Product Pages);

“MODassic” means the legal entity delivering the Services to you as set out on the Legal page on this Website and any of its subsidiaries or affiliated entities;

“Space” means the area on the Server allocated to you by MODassic for use by you as a site on the Internet;

“Term” means the prepaid period during which you receive Services from MODassic;

“You” and “your” mean the person, firm or company who purchases Services from MODassic.

  1.  MISCELLANEOUS

16.1. If any provision of this TOS or part thereof shall be void for whatever reason, the offending words shall be deemed deleted, and the remaining provisions shall continue in full force and effect.

16.2. Your rights and obligations under this TOS are personal to you, and you shall not assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.

16.3. MODassic reserves the right to sub-contract any of the work required to fulfill the Services and to assign this TOS.

16.4. Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event later than ten days from the beginning of the event.

16.5. Any delay or forbearance by either party in enforcing any provisions of this TOS or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.

16.6. Paragraph headings have been included in this TOS for convenience only and shall not be considered part of, or be used in interpreting, this TOS.

16.7. This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

16.8 SURVIVAL. Paragraphs 2.5, 9.2, 10, 11, 12 (for a period of three years following Termination), 13, 14, 15, 16.1, Section A shall survive the termination of this TOS.

Section A – Service Level Agreement (SLA)

Uptime Guarantee

MODassic’s reliable hosting service is backed up by an industry-leading Service Level Agreement (SLA). We guarantee network uptime 99.9% of the time during a twelve month period, starting on the date you order your account. If we fall below that, we will notify you by email and we will automatically compensate your account as follows:

Compensation is limited to the length of your current Term, but cannot exceed twelve months.

Excused Downtime

The following events do not count towards our calculation of uptime:

Our calculation of network availability is based on our internal records. We will not accept Third Party reports as evidence that you are entitled to a credit under this SLA.

This SLA is your sole and exclusive remedy for downtime, or any network, software, hardware or Equipment failure.

Section B – Fair Use

Our Fair Use Policy sets out certain limitations on the allocation of Server resources, aiming to allocate all our customers fair and adequate use of the Services. Details on the resource allocation are set on the Product Page for your Hosting Plan.

When using the Services, you will ensure that neither you nor any of your End Users make excessive use of the Server resources to MODassic’s detriment or that of our other customers. The term “excessive” is defined by our experience with similarly situated customers. Your account includes a control panel that provides statistics setting out your use of the resources associated with the Services. These statistics are the sole and exclusive method to determine whether your account has exceeded its allocated resources.

Unmetered traffic (bandwidth) applies to your use of web pages only (html, php, etc.), not to upload or storage of movies, pictures or music files. While we do not meter traffic, the maximum availability at any time will depend on current traffic usage and the technical specifications of our equipment. Certain Services have a fixed bandwidth allocation as set out on their Product Page. If in any calendar month your use of bandwidth exceeds that basic allocation, the Service will be limited and an overage fee may be charged if you wish to restore it. Unused bandwidth may not be carried over from month-to-month.

You agree that we have the sole right to decide what constitutes a violation of the Fair Use Policy and what is the appropriate severity of any corrective action to be applied. Failure on your part to maintain your account in full compliance with the TOS may result in warning, resource usage limitations, suspension or immediate account termination with no refund. You understand and agree that in the event of violation of the Fair Use Policy, we may provide you with a certain period of time to correct the issue. If you take no action during this period, we may apply corrective actions at our sole discretion. You acknowledge that we can immediately suspend and/or terminate each account that violates the Fair Use Policy and will not be responsible for any data loss resulting from such termination of Services.

Section C – Backup Services

We are pleased to provide you with Daily Backup and Backup Restore Services. As part of our Daily Backup services we keep a limited number of backup copies of your account as set out on the respective Product Page. If you change the Services, we may delete the old backup copies created on your previous plan and start new backups of your account.

If you order Daily Backup services for your Dedicated Server account, you subscribe for a certain backup space size. In the event that your backup space exceeds that size, we will continue to make full backup of your account and will charge you overage fees with your next renewal invoice.

We may suspend the Daily Backup Service for your account or refuse to restore your data, if in our reasonable opinion such backup will result in a security risk or will alter the performance of our Server to the detriment of other customers.

Our Backup Services are provided as-is and are subject to all limitations of liability set out in this TOS. You agree that you will maintain your own set of backups independent of those we maintain. In the event that you are not satisfied with the outcome of any Backup Restore, it shall be your obligation to restore your files and data from your own backup.