VIRTUAL SERVER TERMS AND CONDITIONS
Optic Fusion Inc., DBA Stratus Rack, hereby known in this agreement as Stratus Rack and The Customer agree to the following:
1.0 Scope of Services. Stratus Rack will provide The Customer with the following specific services:
1.1 Physical Server Hardware and Software Services. Stratus Rack will provide the Physical Servers and other computer and operating-system software to operate and support the Virtual Server in a manner acceptable in the industry. Although Stratus Rack will make reasonable efforts to protect and backup data for The Customer on a regular basis, Stratus Rack is not responsible for The Customer's Data residing on the Virtual Server. The Customer is ultimately and solely responsible for the backup of The Customer's Data stored on The Customer's Virtual Server.
1.2 Physical Server Set-Up and Updating. Stratus Rack will configure the Virtual Server, and The Customer will load The Customer's Data onto the server computers so as to create a fully functional Internet presence. After the Virtual Server is loaded, set up with The Customer's Data, and is fully operational, The Customer will be responsible for all Web Server content management.
1.3 Physical Server Connection and Access. Stratus Rack will provide connection of the Virtual Server to the Internet, including all telecommunications equipment and connections for the Virtual Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. Stratus Rack will use its best efforts to provide uninterrupted Physical Server Connection and Access, except for scheduled maintenance downtime and any interruption to Physical Server Connection and Access beyond its control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches.
1.4 Maintenance Services. Stratus Rack will perform maintenance services as Stratus Rack deems reasonably necessary to maintain the continuous operation of the Virtual Server. The Customer agrees to periodically-scheduled maintenance downtime periods. Stratus Rack will provide prior notice of the maintenance downtime, except when circumstances beyond Stratus Rack's control limit Stratus Rack's ability to do so.
1.5 Hardware, Equipment and Software. The Customer is responsible for and must provide all telephone, computer, hardware, software equipment, and services necessary to access Stratus Rack. Stratus Rack makes no representations, warranties, or assurances that The Customer's equipment will be compatible with Stratus Rack's service.
2.1 "The Customer" means the person who orders the Virtual Server, has ownership, control rights, and obligations for the Virtual Server.
2.2 "The Customer Data" means all supporting data files and data structures provided by the Customer for its Virtual Server.
2.3 "Virtual Server" means the server space and software services provided to the Customer including but not limited to the HTTP service, FTP begin using Stratus Rack's services, SMTP service, POP service, server extensions, third-party software, and CGI library scripts.
2.4 "Physical Server" means the serving computers, hardware and operating- system, and software necessary to operate and support the Virtual Server in accordance with this Agreement.
3.0 Payment Terms. The Customer agree to the following payment terms in consideration for the services provided:
3.1 Service Fee. The Customer agrees to pay a monthly service fee provided under this Agreement according to Stratus Rack's current Virtual Server Price Schedule, available on Stratus Rack's website or upon request. The Service Fee shall be automatically charged to The Customer's card on file by the 5th of each month. If The Customer first began using Stratus Rack's services after the first of the month, Stratus Rack will prorate The Customer's second month's Service Fee. The Service Fee is subject to adjustment, with notice, according to the current Virtual Server Price Schedule.
3.2 Cancellation. In the event The Customer cancel The Customer's service, The Customer will be charged in full for the entire month in which The Customer canceled The Customer's service.
3.3 Refund Policy. No refunds will be issued after the server has been set up and The Customer notified.
3.4 Return Policy. There are no returns.
3.5 Breach. In the event Stratus Rack terminates this Agreement because of a breach, The Customer agrees to pay for the entire month in full, in which the breach occurred.
3.6 Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, except that The Customer's income taxes and any sales or similar taxes on the sale of The Customer's products and services to end users shall be the sole responsibility of The Customer.
3.7 Delivery / Shipping Policy. Stratus Rack does not accept deliveries on The Customer's behalf.
4.0 Representations and Warranties. Stratus Racks obligations under this Agreement are conditioned upon the following representations and warranties:
4.1 Compliance with Law. The Customer represent and warrant that The Customer will comply with all applicable state and federal laws in The Customer's performance of this Agreement and in the use and operation of the Virtual Server, including laws governing technology, software and trade secrets.
4.2 Authority to Contract. The Customer represent and warrant that The Customer has full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
4.3 Non-Infringement. The Customer represent and warrant that The Customer's performance of this Agreement and providing the Web Service, including the software or data files, shall not infringe the intellectual property or other proprietary rights of any third party.
4.4 Stratus Rack's Performance. Stratus Rack represent and warrant that Stratus Rack's services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with Stratus Rack's obligations as defined by this Agreement.
4.5 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NONINFRINGEMENT.
4.6 Acceptable Use Policy. The Customer will comply with the Acceptable Use Policy posted on Optic Fusion's website.
4.7 Notice. All notices must be sent by email to firstname.lastname@example.org. All notices to Stratus Rack shall be delivered to Stratus Rack's email address as provided. All notices to The Customer shall be delivered to The Customer's email address as provided . The parties may change their respective address by notice delivered to the other party. Evidence of successful transmission of all notices must be retained by the delivering party.
5.0 The Customer expressly agree that use of Stratus Rack's Virtual Server is at The Customer's own risk. Neither Stratus Rack, its employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warranty that Stratus Rack's service will not be interrupted or error free; nor does Stratus Rack make any warranty as to the results that may be obtained from the use of Stratus Rack's service or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through Stratus Rack's service, unless otherwise expressly stated in this Agreement.
5.1 Under no circumstances, including negligence, will Stratus Rack, its officers, agents or anyone else involved in creating, producing or distributing Stratus Rack's service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to Stratus Rack's service. Stratus Rack will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. The Customer acknowledges that this paragraph shall apply to all content on Stratus Rack's Virtual Server.
5.2 The Customer's sole remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which The Customer paid during the 12-month period prior to the date the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue.
6.0 Term and Termination. The following describes the effective date, duration and methods of termination:
6.1 Effective Date. The Effective Date of this Agreement is the date of the first payment.
6.2 Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis.
6.3 Termination for Convenience. Subject to Section 3.3, The Customer may terminate this Agreement at any time for The Customer convenience by providing us with advance written notice.
6.4 Breach or Default. The following constitute a breach or default of this Agreement:
a. The Customer's credit card when charged is declined,
b. The Customer's violation of Section 8.0,
c. The Customer's violation of 9.2, or
d. The Customer's violation of Sections 4.1, 4.2, 4.3, or 4.6.
6.5 Special Lien on Personal Property. Stratus Rack retains a special lien on all of The Customer's personal property in Stratus Racks possession to secure any payment amount The Customer may owe Stratus Rack under this Agreement.
7.0 Ownership Rights. Stratus Rack acknowledges that all right, title and interest in the customer Data shall be solely owned by the Customer. Stratus Rack owns or have licensed all server software. In the event that Stratus Rack elects, at Stratus Rack's option , to provide custom software to The Customer, this software will be licensed to The Customer for use only on Stratus Racks Virtual Servers on a nonexclusive, royalty-free, fully-paid basis according to the terms of this Agreement.
8.0 Activities Subject to Immediate Deactivation. Any Virtual Server that is used for Illegal, Abusive or Unethical Activity may be immediately deactivated by Stratus Rack without warning to The Customer. Illegal, Abusive or Unethical Activities include, but are not limited to, violation of the Acceptable Use Policy, unsolicited commercial email or spam, obscenity, violations of privacy, hacking, computer virus, gambling, or promotion of gambling, and any harassing or harmful materials or uses, as determined by Stratus Rack . The Customer agree to indemnify and hold Stratus Rack harmless from any claim resulting from The Customer's publications or use of Illegal, Abusive or Unethical materials. Although Stratus Rack will make reasonable efforts to alert The Customer to such activities and allow The Customer an opportunity to cure them within a 12-hour period after discovery, Stratus Rack is not required to give notice before deactivating The Customer's use of Stratus Rack's services if, in Stratus Rack's discretion, The Customer's use is or results in Illegal, Abusive or Unethical activities. If a Virtual Server is disabled, the regular monthly fees still apply.
9.1 Public Nature of Internet. Please understand that all information submitted on the Virtual Server shall be considered publicly accessible. Important and private information should be protected by The Customer. For example, Stratus Rack is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that The Customer may use.
9.2 Unsolicited Electronic Mail. The Customer are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert The Customer to such activities and allow The Customer an opportunity to cure them within a 12-hour period after discovery, Stratus Rack reserves the right to immediately deactivate The Customer's use of Stratus Rack's service if Stratus Rack discovers such activity. Further, The Customer agree to indemnify and hold Stratus Rack harmless from any claim resulting from The Customer's use or distribution of electronic mail services through the service provided through this Agreement.
9.3 Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the state of Michigan, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees, whether or not a suit is actually filed.
9.4 Control and Ownership of IP. Stratus Rack maintains and controls ownership of all IP numbers and addresses that may be assigned to The Customer, and Stratus Rack reserves, in Stratus Rack's sole discretion , the right to change or remove any and all IP numbers and addresses.
9.5 Excessive CPU Usage. Virtual Servers which use, in Stratus Rack's discretion, CPU processing capacity on the Physical Server in excess of the designed processing capacity will be subject to immediate deactivation. Upgrades to the processing capacity are available.
9.6 Resale of Services and Flow-down of Obligations. The Customer may resell space on The Customer's own Virtual Servers but The Customer must first obligate any such resale to the same terms of this Agreement and incorporate into that resale all of our rights, including our rights regarding content and activity.
9.7 Age. The Customer certifies that The Customer id at least 18 years of age.
9.8 Transfer. The Customer may not transfer or assign this Agreement without the written consent of Stratus Rack .
Stratus Rack Virtual Server Agreement 02/11/11
DEDICATED SERVER AGREEMENT OF OPTIC FUSION INC. DBA STRATUS RACK
This Agreement ("Agreement") is between Stratus Rack, and the party specified in the order form and incorporated herein by reference ("Order"). Such party shall be referred to herein as the "Customer" and shall enter into this Agreement by signing below. For good and valuable consideration, the parties agree as follows:
Subject to the terms and conditions of this Agreement, Stratus Rack will provide to Customer Internet facilities consisting of some or all of: connectivity, hardware management, software management, web hosting, and/or related services described in the plan selected by Customer from Stratus Rack's then published list of services offered from time to time ("Services"). The specific plan of Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and Stratus Rack.
The initial term of this Agreement shall be thirty (30) days. The Initial Term shall begin upon commencement of Services to Customer, however, no Services shall commence unless and until Stratus Rack receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges. Stratus Rack reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by Stratus Rack. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the "Term."
3. FEES AND PAYMENT
Payment Terms. You agree to the following payment terms in consideration for the services provided: The Customer agrees to pay a monthly service fee provided under this Agreement according to Stratus Rack's current Dedicated Server Agreement, available on our website or upon request. The Service Fee is to be paid via credit card and will be automatically charged to your card on file by the 5th of each month. If you first begin using Stratus Rack's services after the first of the month, Stratus Rack will prorate your second months Service Fee. The Service Fee is subject to adjustment, with notice, according to the current Dedicated Server Agreement.
4. CONTENT AND CUSTOMER'S RESPONSIBILITY
Stratus Rack will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through its network. Stratus Rack shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason.
5. NO WARRANTY
Customer agrees to use Stratus Rack's Services, and any information obtained through or from Stratus Rack, at Customer's own risk. Customer acknowledges and understands that neither Stratus Rack, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. Stratus Rack specifically disclaims all warranties of any kind, including, without limitation, the warranty of merchantability and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder.
6. PROHIBITED USES
Customer shall not use Stratus Rack's Services in violation of Stratus Rack's "Acceptable Use Policy."
7. LIMITED LIABILITY
Under no circumstances, including negligence, shall Stratus Rack, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to Customer or any third party, for any claims, causes of action or direct, indirect, incidental, special, or consequential, trebled, or punitive damages, that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Stratus Rack's records, programs or services. Stratus Rack further shall have no responsibility whatsoever to Customer or any third party for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. Notwithstanding the above, Customer's exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve (1) month immediately preceding the claim or the term of this Agreement, whichever is less.
Customer shall defend, indemnify, save and hold Stratus Rack harmless from any and all damages, demands, liabilities, losses, costs and claims, including, without limitation, reasonable attorneys' fees, compensatory damages, punitive damages, trebled damages, and statutory damages (hereinafter "Liabilities") asserted against Stratus Rack, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed by Customer, its agents, employees or assigns or any product distributed, offered or sold by Customer, its agents, employees or assigns.
This Agreement may be terminated: (i) by the customer, without cause, by giving the other party 30 days prior written notice, any time after the initial contract term;(ii) by Stratus Rack, without cause, by giving the other party 30 days prior written notice; (iii) by Stratus Rack, at any time, upon 20 days' prior notice if in the sole judgment of Stratus Rack, Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iv) by Stratus Rack in the event of nonpayment by Customer as provided in Paragraph 3 above; and (v) by Stratus Rack, at any time, without notice, if, in Stratus Rack's sole judgment, Customer is in violation of any terms or conditions of Stratus Rack's Acceptable Use Policy.
10. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has received and reviewed a copy of Stratus Rack's "Acceptable Use Policy" and that the terms of the Acceptable Use Policy are incorporated herein by reference. Stratus Rack reserves the right to amend the Acceptable Use Policy from time to time and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visit Stratus Rack's web site to review its Acceptable Use Policy and to make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Acceptable Use Policy, the terms of the Acceptable Use Policy shall govern.
All notices must be sent by email to email@example.com. All notices to Stratus Rack shall be delivered to its email address as provided. All notices to the customer shall be delivered to its email address as provided . The parties may change their respective address by notice delivered to the other party. Evidence of successful transmission of all notices must be retained by the delivering party.
This Agreement sets forth the entire agreement between Stratus Rack and Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. Customer may not transfer or assign this Agreement without Stratus Rack prior written consent. This Agreement shall be governed by the laws of the State of Washington and all claims concerning this Agreement shall be brought exclusively in the state or federal courts located in the County of Pierce in the State of Washington. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum.
02/10/11 Dedicated Server Agreement