By purchasing the Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that seTweaks may establish and post on its website from time to time.
Description of Services
seTweaks provides the Services to its customers for a monthly fee. seTweaks will provide You an account on one or more of its dedicated servers, provided, however, You abide by the terms and conditions set forth in this Agreement and in any other agreement pertaining to other services you may purchase. seTweaks reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. seTweaks shall use reasonable efforts to notify You in advance of any planned changes to seTweaks’s network or facilities that may adversely affect the Services provided under this Agreement.
Fees for Services ordered by You shall be charged beginning on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings including one time fees, upgrades, additional services, terminations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each month.
From time to time it may be necessary to make adjustments in the fees and surcharges charged for the Services in order to cover certain changing costs (e.g., power) incurred by seTweaks in providing the services. Such adjustments will be reflected on the statement or invoice provided to you for the Services, and you agree to pay for the fees and surcharges for the Services, as adjusted.
seTweaks reserves the right to charge a late fee of $20 per invoice per month on late payments. Invoices will be automatically considered late once the invoice due date has passed.
In the event you fail to pay your invoice within 2 days of the due date, we reserve the right to suspend your service and terminate your service entirely and reformat your server.
If you are terminated for non-payment, we also reserve the right to refer your account to a third party collection agency and you agree to pay any collection fees or legal fees we may be charged to collect on your debt.
Term and Termination and Money Back Guarantee
You agree to a month to month term for the Services unless otherwise agreed to in writing. The month to month term for services is automatically renewed each month unless either party notifies the other in writing of its desire that the Agreement not be renewed, no later than three (3) days before the next upcoming anniversary date for billing. For information on how to terminate Your account, please contact the seTweaks billing department.
When you request termination, we will follow this process: We will first contact you to confirm the termination and verify that you are authorized under your account to terminate it. Then, we will immediately suspend billing and disconnect service to the server. We are not able to schedule termination ahead of time, and all termination requests are effective immediately. Regarding mid-month or mid-period terminations, seTweaks will not issue pro-rated refunds for payments received in the middle of a payment cycle. Receipt by you of any Services in a given period will obligate you to pay for the Services during that entire billing period.
seTweaks may terminate this Agreement effective immediately and without notice upon any breach by You of any of the terms of this Agreement. In such event, seTweaks shall have no obligation to refund any fees paid in advance by You.
Chargebacks and Payment Disputes
Under this Terms of Service agreement you must first contact seTweaks to attempt to resolve any billing disputes before contacting your bank or credit card company to dispute the charges. You further agree that any billing disputes must be submitted in writing to our billing department within one month of the invoice payment in question.
By using our services You agree to the above policy and to contact seTweaks before contacting your financial institution to seek a resolution.
In the event you dispute charges contrary to this agreement, we reserve the right to refer your account or sell your debt (plus any applicable fees) to a third party collection agency. We also reserve the right to take further legal action against you. Tortious and Other Unreasonable Conduct
Any abuse towards any seTweaks employee will not be tolerated. You are expected to request and respond to support, billing and other issues in a professional manner, when emailing, calling or submitting online tickets to seTweaks. Any cursing, yelling, or further intentional disruptive behavior aimed at seTweaks or its employees shall be considered a violation of this Terms of Service agreement.
Any threat; whether orally, verbally, in writing, via E-mail, via Live Chat directed towards seTweaks or any of seTweaks’s employees, partners, staff, contractors, sub-contractors, facilities, offices, etc. shall be construed as a violation of this Terms of Service agreement. Threats of physical violence will be directed to the proper authorities. No refunds shall be given for termination of the Services for violation of these provisions.
seTweaks reserves the right to cancel, suspend or terminate any or all of the Services after receiving billing, sales or technical requests which seTweaks, in its sole discretion, considers unreasonable or excessive. seTweaks may limit, at any time or without prior notice to you, the availability and type of billing support provided.
License to Host
You hereby grant to seTweaks a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary to provide the Services under this Agreement: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by You; and (b) make archival or backup copies of content uploaded by You to the seTweaks servers. seTweaks shall have the right, but not the obligation, to make backup copies of the data uploaded by You to the seTweaks servers. You are responsible for any of your content residing on seTweaks’s servers and for the backup thereof.
Storage and Security
At all times, You bear full risk of loss of any content and software you place on the seTweaks servers. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.
seTweaks does not undertake any obligation to provide management or security services unless you specifically request it to do so. If any technology specifically associated with your account requires updating, You must make a request for such update through seTweaks’s ticketing system.
You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; and (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on seTweaks servers. seTweaks shall have no liability to You or any other person for loss, damage or destruction of any of Your content.
You agree not to use the Services to:
– upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; – administer IRC; – provide web proxying or other anonymizing services to hide the origin of network traffic; – harm minors in any way; – impersonate any person or entity; – “stalk” or otherwise harass another person; – forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; – upload, post, email, transmit or otherwise make available any Content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); – upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; – upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or “pyramid schemes;” – upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; – interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; – intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; – provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or – collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the paragraphs above. Zero Tolerance Policy for Unsolicited E-mail/Black Listing
“Unsolicited E-mail Complaint” is an occurrence of a third-party complaint regarding a specific E-mail communication message sent by You. “Unsolicited E-mail Incident” is an occurrence of a single E-mail message which may have been sent to multiple E-mail addresses. An Incident may contain numerous Complaints. Incidents may contain Complaints received up to 24 hours after the first. After 24 hours, a new Incident will be opened.
Black Listing: “IP Black Listing” is an occurrence when a third party black listing service determines that a seTweaks issued IP address is a frequent source of Unsolicited E-mail. Black Listings result in the IP address (or multiple IP addresses in the same “IP range”) being unable to send E-mail to certain third parties.
seTweaks has designed this portion of this Agreement to comply with the United States CAN-SPAM Act (the “Act”.) The Act states that commercial E-mail must be solicited, an effective, visible and clearly defined un-subscription process be in place, that every E-mail message sent be sent from a valid address, without any form of IP or source spoofing, that every E-mail message sent contain the physical contact information of the sender, that every recipient of such E-mail messages has requested to receive such E-mails and that the messages and method in which they were sent comply with the other provisions of the United States CAN-SPAM Act.
Zero Tolerance for Black Listing: seTweaks has a Zero Tolerance policy regarding Black Listings and considers any attempt to send Unsolicited E-mail Messages or other forms of Spam E-mail (including “Spamvertising” other websites or services or products) to be violations of this Agreement. If an IP address assigned to You is found to be Black Listed, seTweaks reserves the right to discontinue your services immediately with or without warning.
Furthermore seTweaks will levy a Black Listing processing fee of $200 for the first instance of IP Black Listing and $400 for the second instance of IP Black Listing (collectively, the “Penalties”.) If your service is terminated under the Unsolicited E-mail Policy then you forfeit all fees paid, including pre-paid fees and unused time. All fees paid become non-refundable. Further, account termination does not absolve or nullify Penalty payments you may owe to seTweaks. Further, you may accumulate additional Penalties based on complaints received after your termination. This section of the Agreement will survive for a period of one year after this agreement is terminated.
Network Uptime and Power Uptime
seTweaks guarantees that the Services will be available 100% of the time and, except as provided in this Agreement, in the event the Services are unavailable due to Downtime, You will be entitled to a credit or refund as set forth below. For purposes of this Agreement, the term “Uptime” refers to the amount of time the Services are available in each calendar month, measured by seTweaks’s internal monitoring systems. The term “Downtime” shall refer to the amount of time the Services are unavailable due to issues with electrical power or network connectivity, as measured by seTweaks’s internal monitoring systems, but shall not include unavailability of the Services caused byemergency maintenance, scheduled maintenance, system upgrades, DNS issues outside seTweaks’s control, issues with FTP, POP, IMAP or SMTP customer access, acts or omissions by You or any of Your employees or agents, Your violation of seTweaks’s Acceptable Use Policy, or problems with users, web browsers, DNS, or other caching that might make it appear the Services are unavailable even though other internet users can access the Services.
|99.1% to 99.9%||5%|
|98% to 99%||10%|
|95% to 97.9%||25%|
|90% to 94.9%||50%|
|89% or below||100%|
The total amount credited to You in a particular month under this Agreement shall not exceed the total amount of fees paid by You for such month for the affected Services. Credits or refunds are exclusive of any applicable taxes charged to You or collected by seTweaks and are Your sole and exclusive remedy with respect to any failure by seTweaks to provide the Services. The provisions of the Agreement pertaining to Force Majeure are unaffected by the terms of this Service Level Agreement.