Last Revised: January 17, 2018
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Hosting Agreement (this “Agreement”) is entered into by and between TierFive Solutions Group Inc. (“TierFive”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of TierFive’s Hosting services (the “Services”), and represents the entire agreement between you and TierFive concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms of Service Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “host”, “we”, “us”, or “our” shall refer to TierFive. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
- DESCRIPTION OF SERVICES
We offer varying Hosting Services:
Web Hosting. If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).
Managed WordPress Hosting. If you purchase Managed WordPress Hosting, you get a streamlined and optimized experience to build and manage WordPress sites while we handle the basic hosting administrative tasks which include installing WordPress, automated daily backups, WordPress core updates and server-level caching.
Hosting Migrations. If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”). Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.
You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration. If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location. We will not perform website backups or archives in connection with a Hosting Migration, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during the migration process.
You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Hosting Migrations are not available for websites with over 10GB of data or more than 100,000 files.
We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. You are welcome to disable the plugin on your source site after the Hosting Migration has been completed.
WordPress (“WP”) Premium Support. If you elect to use our WP Premium Support Services (either as a subscription or as a one-time Service), we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. All services, both subscription and one time, will be listed as a “Best Effort Service.” Even after taking all reasonable steps, we may not be able to resolve certain issues. We are not responsible for and will not provide assistance with any issue(s) that arise beyond fourteen days of any use of WP Premium Support Services.
We may install a plugin on your hosted WordPress site for the purpose of facilitating your WP Premium Support Services. Its purpose is to facilitate the requested change and maintenance of your WordPress files. The plugin allows us to access, automate updates to core files, other plugins, themes, and other files related to the maintenance of your site.
You acknowledge and agree that you shall not use WP Premium Support Services in a manner, as determined by us in our sole and absolute discretion:
- To display or advertise pornographic, X-rated, sexually explicit, or otherwise tasteless materials, images, products or services (including, but not limited to: massage, dating, escort or prostitution services); or
- That uses pornographic, X-rated, sexually explicit keywords or images in video names, descriptions or listings.
Further, you are responsible for ensuring that any product posted for sale on your website is in compliance with all applicable laws and regulations where your items can be purchased. We reserve the right and sole discretion to determine whether the sale of any particular item is illegal or otherwise prohibited and/or cancel your Services.
Storage Capacity. The total amount of usable storage capacity for your particular Hosting Service(s) may differ from the represented capacity, as there is required space for the operating system(s), system file(s), and other supporting file(s).
- LIMITATIONS; ACCOUNT TERMINATION
Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
- YOUR OBLIGATIONS; REPRESENTATIONS AND WARRANTIES
Justification. You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.
Abusive Activities and Other Threats. You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or will damage the systems of, or cause a disruption of internet services to, TierFive, our customers, or third-parties. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement. You further acknowledge and agree that TierFive reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in TierFive’s discretion for security purposes.
In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) attempt to mislead any person as to the identity, source or origin of any communication; (2) 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; or (3) use your server as an “open relay” or for any of the above purposes.
Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one unless explicitly stated. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
Website/Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
If access to a third-party hosting website is required in the provision of any Service, you represent and warrant that you are authorized to provide us with access to the third-party hosting account for the purposes of this Agreement. You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.
If you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity.
- HOSTING SERVICE LEVELS
TierFive must use commercially reasonable efforts to insure that the Website is available on the Web except during scheduled maintenance as set forth hereto.
(a) Routine Maintenance Disruptions. If the cumulative downtime of the Website resulting from scheduled maintenance as set forth exceeds twenty-four (24) hours during any thirty (30) day period (unless such downtime is approved in advance by TierFive), TierFive may, in its sole discretion, terminate the agreement immediately by giving written notice to the Host; provided, however, that such immediate termination may issue only if the disruption or disruptions do not arise from any action or inaction.
(b) Unforeseen Hosting Disruptions. TierFive shall inform the Customer immediately of any unforeseen disruption of the Services arising from causes that are beyond the TierFive’s control, including, but not limited to, actions or failures of third parties, and of any remedial actions being taken to minimize the effects and length of any such disruption. TierFive will not be liable for damages to the Customer resulting from the disruption of the Services that are beyond its reasonable control. Notwithstanding the foregoing, if the Website’s availability is disrupted for a reason other than scheduled maintenance for (i) twenty-four (24) consecutive hours, (ii) six (6) periods of thirty (60) minutes or more during a seven (7) day period, or (iii) four (4) periods of twenty-four (24) hours or more during a thirty (30) day period, TierFive may, in its sole discretion, terminate the Agreement immediately by giving written notice to the Customer; provided, however, that such immediate termination may issue only if the disruption or disruptions do not arise from any action or inaction.
(c) Security. TierFive must take commercially reasonable steps to prevent unauthorized access to the Website and to any of the Customer’s Confidential Information stored on TierFive’s servers, including, but not limited to, any data collected on the Website.
- NATURE OF RELATIONSHIP
(a) Independent Contractor Status. TierFive agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Host is and will remain an independent contractor in its relationship to the Customer. The Customer shall not be responsible for withholding taxes with respect to the Host’s compensation hereunder. TierFive shall have no claim against the Customer hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
(b) Indemnification of Customer by TierFive. The Customer has entered into this Agreement in reliance on information provided by the Host, including the TierFive’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that the Host is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on the TierFive’s own actions, the TierFive shall assume full responsibility and liability for all taxes, assessments, and penalties imposed on or against the TierFive and/or the Customer resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from the TierFive’s earnings had TierFive been on the Customer’s payroll and employed as an employee of the Customer.
- NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
TierFive hereby warrants to the Customer that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, TierFive is free to engage in other website hosting activities; provided, however, the TierFive shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the TierFivet’s obligations or the scope of Services to be rendered for the Customer pursuant to this Agreement.
(a) Of Customer by TierFive. TierFive shall indemnify and hold harmless the Customer and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Host arising from or connected with the Host’s carrying out of its duties under this Agreement, or (ii) the Host’s breach of any of its obligations, agreements, or duties under this Agreement.
(b) Of TierFive by Customer. The Customer shall indemnify and hold harmless TierFive from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) its hosting or usage of the Customer’s Website in connection with the carrying out of its duties under this Agreement or (ii) the Customer’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of TierFive.
- INTELLECTUAL PROPERTY
(a) No Intellectual Property Infringement by TierFive. TierFive hereby represents and warrants that the use and proposed use of any software, programs, or applications by the Customer or any third party to access the Website does not and shall not infringe, and TierFive has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to access the Website infringe on the rights of any such third party, TierFive shall obtain a license or consent from such third party permitting the use of such items.
(b) No Intellectual Property Infringement by Customer. The Customer represents to TierFive and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend TierFive and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Customer. The Customery further represents to the Host that its domain names or URL listings do not infringe, dilute, or otherwise violate third-party rights or trademarks.
(c) Host Property Rights. All tools, know-how, and technology leased or licensed to TierFive with respect to the hosting of the Website are the sole property of the Host, and the Company has no ownership or other intellectual property rights in or to such items.
(d) Customer Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the Customer, and the Host has no ownership or other intellectual property rights in or to such items.
(e) Nature of Website Content. The Customer represents that the content of the Website is not defamatory or obscene, does not constitute false advertising, and does not violate any applicable laws or regulations. TierFive has the right, but not the duty, to review and monitor all Website content submitted for hosting and to reject or remove any Website content it believes in good faith breaches the Customer’s representations made under this Agreement. TierFive does not accept responsibility or liability for any errors, inaccuracies or unsuitable content on the Website.
- THIRD PARTY SOFTWARE
“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.
Operating Software. The Services may be operated in both Linux® and Windows® environments. Each time you commission a server, we will provision the server with the operating system you choose.
We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
- TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
- DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.
- ENGLISH LANGUAGE CONTROLS
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.