Refunds
If for any reason you are not
satisfied with the Hosting Services provided, we offer a full money back
promise. Simply cancel your Hosting Plan within the first thirty days of
service and we will refund your money.
SmoothCore Hosting. Terms & Conditions Agreement
- Term and Payment for Services
- Use of Services
- Enforcement
- Intellectual
Property Rights
- Warranty; Warranty
Disclaimer
- Limitation and Exclusion
of Liability
- Indemnification
- Miscellaneous
SmoothCore Hosting. Terms & Conditions Agreement
NOTWITHSTANDING, BY USING THE
SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE
USE POLICIES INCORPORATED BY REFERENCE.
SmoothCore Hosting reserves the right to change or modify any of the
terms and conditions contained in this Agreement, any Addendum and any policy
or guideline incorporated by reference at any time and from time to time in its
sole discretion, and to determine whether and when any such changes apply to both
existing or future customers. Any changes or modification will be effective
upon posting of the revisions on the SmoothCore
Hosting Web site (the "Site"). Your continued use of Services
following SmoothCore Hosting 's posting of any
changes or modifications will constitute your acceptance of such changes or
modifications.
1.
TERM AND PAYMENT FOR SERVICES
1.1.
Term
This Agreement shall be for an
"Initial Term" as chosen by you in the Order Form located on this
Site at the time you register for the Services. This Agreement will be
automatically renewed (the "Renewal Term") at the end of the Initial
Term for the same period as the Initial Term unless you provide SmoothCore Hosting with notice of termination thirty (30)
days prior to the end of the Initial Term or the Renewal Term.
1.2.
Termination Policy
If you terminate your receipt of the
Services prior to the end of the Initial Term or the Renewal Term, whichever is
then applicable, (a) SmoothCore Hosting will not
refund to you any fees paid in advance of such termination and (b) you shall be
required to pay 100% of SmoothCore Hosting's standard
monthly charge for each month remaining in the term, unless otherwise expressly
provided in this Agreement. Notwithstanding the foregoing, if you terminate your
receipt of Shared Hosting Services prior to the end of the first thirty (30)
days of the Initial Term, you are entitled to a refund of the fees you paid in
advance for the monthly Services, not including any setup fees. Your
termination request or notice must be submitted to SmoothCore
Hosting in the manner described in Section 1.1. SmoothCore
Hosting may terminate this Agreement at any time and for any reason by
providing to you written notice thirty (30) days prior to the date of
termination. If SmoothCore Hosting terminates this
Agreement, SmoothCore Hosting will refund to you the
pro-rata portion of prepaid fees attributable to Services (excluding setup
fees) not yet rendered as of the termination date unless otherwise expressly
provided in this Agreement. If termination was enforced to due violations that
result in damages or fees assigned to SmoothCore
Hosting on your behalf, no refunds shall apply and you will be held liable for
such fees.
1.3
Default and Cure
In the event that either party hereto
defaults in the performance of any of its material duties or obligations under
this Agreement, including failure to make any payments due under this
Agreement, and such default is not cured within five (5) days after written
notice is given to the defaulting party specifying the default, then the party
not in default, after given written notice thereof to the defaulting party, may
terminate this Agreement.
1.4.
Charges
You agree to pay for all charges
attributable to your use of the Services at the then current SmoothCore Hosting prices, which shall be exclusive of any
applicable taxes. You are responsible for the payment of all federal, state,
and local sales, use, value added, excise, duty and any other taxes assessed
with respect to the Services, other than taxes based on SmoothCore
Hosting's net income.
1.5.
Payment
All charges for Services must be
paid in advance according to the then current prices applicable to the
Services. Upon entering this Agreement, you must choose to pay either by direct
charge to a credit or debit card. If you choose to pay by credit or debit card
upon registering for the Services, you thereby authorize SmoothCore
Hosting to charge your credit or debit card to pay for any charges that may
apply to your account. You must notify SmoothCore
Hosting of any changes to your card account (including, without limitation,
applicable account number or cancellation or expiration of the account), your billing
address, or any information that may prohibit SmoothCore
Hosting from charging your account. SmoothCore
Hosting may also create periodic invoices for any applicable Supplemental
Charges associated with your use of the Services. You agree to pay to SmoothCore Hosting the amount indicated in each invoice by
the due date reflected on that invoice. If you fail to pay any fees and taxes
by the applicable due date for credit card or invoice payments, late charges of
the lesser of one and one-half per cent (1.5%) per month or the maximum
allowable under applicable law but at no time less than $15 shall also become
payable by you to SmoothCore Hosting . In addition,
your failure to fully pay any fees and taxes within five (5) days after the
applicable due date will be deemed a material breach of this Agreement, and SmoothCore Hosting may, in addition to any other remedy it
may have: (i) suspend its performance of the Services
and/or terminate this Agreement; and/or (ii) At the time of such nonpayment, TotalChoice may, delete any and all content from the TotalChoice Servers. Any such suspension or termination of
the Services would not relieve you from paying past due fees plus interest.
1.6.
Chargebacks, Reversals, and Retrievals
If you have a billing issue, please
contact SmoothCore Hosting to address and resolve the
issue. If SmoothCore Hosting receives a chargeback or
payment dispute from a credit card company, bank, or PayPal, your Services may
be suspended without notice and you will be responsible for a $50 chargeback
fee. Any outstanding balances accrued as a result of the chargeback(s) must be
paid in full before Services will be restored..
2.
USE OF SERVICES
2.1.
Applicable Use Policy
The SmoothCore
Hosting Acceptable Use Policy (the "Usage Policy") govern the general
policies and procedures for use of the Services. The Usage Policy is posted on SmoothCore Hosting's Web site (or such other location as SmoothCore Hosting may specify) and may be updated from
time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE
SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY
MODIFICATIONS. SmoothCore Hosting RESERVES THE RIGHT
TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS
AGREEMENT.
2.2.
Material and Product Requirements
Unless we have agreed otherwise in a
separate agreement, you must ensure that all material and data placed on SmoothCore Hosting's equipment is in a condition that is
"server-ready," which is in a form requiring no additional manipulation
by SmoothCore Hosting . SmoothCore
Hosting will make no effort to validate any of this information for content,
correctness or usability. If your material is not "server-ready", SmoothCore Hosting has the option at any time to reject
this material. SmoothCore Hosting will notify you of
its refusal of the material and afford you the opportunity to amend or modify
the material to satisfy the needs and/or requirements of SmoothCore
Hosting . Use of the Services requires a certain level of knowledge in the use
of Internet languages, protocols and software. This level of knowledge varies
depending on the anticipated use and desired content of your Web site. You must
have the necessary knowledge to create and maintain a Web site. It is not SmoothCore Hosting 's responsibility to provide this
knowledge or customer support outside of the Services agreed to by you and SmoothCore Hosting .
2.3.
Bandwidth and Storage Usage
You agree that use of the Services
under this Agreement will not exceed the bandwidth and storage usage limits set
out. If you use any bandwidth or storage space in excess of the agreed upon
number of megabytes per month, you agree to pay the associated additional
charges. Data stored in your user account on a TotalChoice
Server is not owned by SmoothCore Hosting; therefore
Data preservation is the ultimate responsibility of you, the client. SmoothCore Hosting is in no way responsible for the
client's data and or the backup of that data.
3.
ENFORCEMENT
3.1.
Investigation of Violations
SmoothCore Hosting may investigate any reported or suspected violation
of this Agreement, its policies or any complaints and take any action that it
deems appropriate and reasonable under the circumstance to protect its systems,
facilities, customers and/or third parties. SmoothCore
Hosting will not access or review the contents of any e-mail or similar stored
electronic communications except as required or permitted by applicable law or
legal process.
3.2.
Actions
SmoothCore Hosting reserves the right and has absolute discretion to
restrict or remove from its servers any content that violates this Agreement or
related policies or guidelines, or is otherwise objectionable or potentially
infringing on any third party's rights or potentially in violation of any laws.
If we become aware of any possible violation by you of this Agreement, any
related policies or guidelines, third party rights or laws, SmoothCore
Hosting may immediately take corrective action, including, but not limited to,
(a) issuing warnings, (b) suspending or terminating the Service, (c)
restricting or prohibiting any and all uses of content hosted on SmoothCore Hosting 's systems, and/or (d) disabling or
removing any hypertext links to third party Web sites, any of your content
distributed or made available for distribution via the Services, or other
content not supplied by SmoothCore Hosting which, in SmoothCore Hosting 's sole discretion, may violate or
infringe any law or third-party rights or which otherwise exposes or
potentially exposes SmoothCore Hosting to civil or
criminal liability or public ridicule. It is SmoothCore
Hosting 's policy to terminate repeat infringers. SmoothCore
Hosting's right to take corrective action, however, does not obligate us to
monitor or exert editorial control over the information made available for
distribution via the Services. If SmoothCore Hosting
takes corrective action due to such possible violation, SmoothCore
Hosting shall not be obligated to refund to you any fees paid in advance of
such corrective action.
3.3.
Disclosure Rights
To comply with applicable laws and
lawful governmental requests, to protect SmoothCore
Hosting 's systems and customers, or to ensure the integrity and operation of SmoothCore Hosting 's business and systems, SmoothCore Hosting may access and disclose any information
it considers necessary or appropriate, including, without limitation, user
profile information (i.e., name, e-mail address, etc.), IP addressing and
traffic information, usage history, and content residing on SmoothCore
Hosting's servers and systems. SmoothCore Hosting
also reserves the right to report any activity that it suspects violates any
law or regulation to appropriate law enforcement officials, regulators, or
other appropriate third parties.
4. INTELLECTUAL PROPERTY RIGHTS
4.1.
Your License Grant to SmoothCore Hosting
You hereby grant to SmoothCore Hosting a non-exclusive, worldwide, and
royalty-free license for the Initial Term and any Renewal Term to use your
content as necessary for the purposes of rendering and operating the Services
to you under this Agreement. You expressly (a) grant to SmoothCore
Hosting a license to cache materials distributed or made available for
distribution via the Services, including content supplied by third parties, and
(b) agree that such caching is not an infringement of any of your intellectual
property rights or any third party's intellectual property rights.
4.2.
SmoothCore Hosting Materials and Intellectual
Property
All materials, including but not limited
to any computer software (in object code and source code form), data or
information developed or provided by SmoothCore
Hosting or its suppliers or agents pursuant to this Agreement, and any
know-how, methodologies, equipment, or processes used by SmoothCore
Hosting to provide the Services to you, including, without limitation, all
copyrights, trademarks, patents, trade secrets and other proprietary rights are
and will remain the sole and exclusive property of SmoothCore
Hosting or its suppliers, including but not limited to any software programs,
inventions, products and/or technology innovations and methodologies utilized,
developed, or disclosed by SmoothCore Hosting during
the term of this Agreement. Unauthorized copying, reverse engineering,
decompiling, and creating derivative works based on the any such software is
expressly forbidden except as permitted in this Agreement. You may be held
legally responsible for violation of any patent rights, copyright or trade
secret rights that is caused or encouraged by failure to abide by the terms of
this Agreement.
4.3.
Trademarks
You hereby grant to SmoothCore Hosting a limited right to use your trademarks,
if any, for the limited purpose of permitting SmoothCore
Hosting to fulfill its duties under this Agreement. This is not a trademark
license and no other rights relating to the trademarks are granted by this
Agreement. Specifically, but without limitation, the rights granted by this
Agreement do not include the right to sub-license use of your trademarks or to
use your trademarks with any other products or services outside the scope of
the Services provided under this Agreement. The limited trademark use rights
granted under this section terminate upon termination of this Agreement.
5. WARRANTY; WARRANTY DISCLAIMER
5.1.
Customer and/or Third Party Acts
SmoothCore Hosting is not responsible in any manner for any
non-confirming Services to the extent caused by you or your customers. In
addition, SmoothCore Hosting is not responsible for loss
or corruption of data in transmission, or for failure to send or receive data
due to events beyond SmoothCore Hosting's reasonable
control.
5.2.
No Express or Implied Warranty
ALL SERVICES, SYSTEMS AND PRODUCTS
PROVIDED BY SMOOTHCORE HOSTING UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND
AGREE THAT SMOOTHCORE HOSTING EXERCISES NO CONTROL OVER, AND ACCEPTS NO
RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH SMOOTHCORE
HOSTING's COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. SMOOTHCORE
HOSTING DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY
WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK
INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED
"AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE
INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR
COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SMOOTHCORE
HOSTING DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE
ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING
THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY,
AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK
INFRINGEMENT.
5.3
Your Warranties and Representations to SmoothCore
Hosting
You warrant, represent, and covenant
to SmoothCore Hosting that (a) you are at least
eighteen (18) years of age or are a duly organized and validly existing entity;
(b) you possess the legal right and ability to enter into this Agreement; (c)
you will use the Services only for lawful purposes and in accordance with this
Agreement and all applicable policies and guidelines; (d) you will be
financially responsible for the use of your account; (e) you have acquired or
will acquire all authorization(s) necessary for hypertext links to third-party
Web sites or other content; (f) you have verified or will verify the accuracy
of materials distributed or made available for distribution via the Services,
including, without limitation, your content, descriptive claims, warranties,
guarantees, nature of business, and address where business is conducted, and
(g) your content and/or any software that you install or provide does not and
will not infringe or violate any right of any third party (including any
intellectual property rights) or violate any applicable law, regulation or
ordinance.
6.
LIMITATION AND EXCLUSION OF LIABILITY
6.1.
Limitations
IN NO EVENT SHALL SMOOTHCORE HOSTING
HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION,
THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO SMOOTHCORE HOSTING ,
DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. SMOOTHCORE
HOSTING SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF SMOOTHCORE
HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE
LIABILITY OF SMOOTHCORE HOSTING TO YOU FOR ANY REASON AND UPON ANY CAUSE OF
ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SMOOTHCORE HOSTING BY
YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE
DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS. THE FEES FOR THE SERVICES SET BY SMOOTHCORE HOSTING UNDER THIS AGREEMENT
HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK.
ACCORDINGLY, YOU HEREBY RELEASE SMOOTHCORE HOSTING FROM ANY AND ALL
OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR
LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2.
Interruption of Service
You hereby acknowledge and agree
that SmoothCore Hosting will not be liable for any
temporary delay, outages or interruptions of the Services. Further, SmoothCore Hosting shall not be liable for any delay or
failure to perform its obligations under this Agreement, where such delay or
failure results from any act of God or other cause beyond its reasonable
control (including, without limitation, any mechanical, electronic,
communications or third-party supplier failure).
6.3.
Maintenance
You hereby acknowledge and agree
that SmoothCore Hosting reserves the right to
temporarily suspend services for the purposes of maintaining, repairing, or
upgrading its systems and network. SmoothCore Hosting
will use best efforts to notify you of pending maintenance however at no time
is under any obligation to inform you of such maintenance.
7. INDEMNIFICATION
You will defend, indemnify and hold
harmless SmoothCore Hosting and its officers,
directors, shareholders, employees, consultants, agents, affiliates and
suppliers (an "Indemnitee") from any and all threatened or actual
claims, demands, causes of action, suits, proceedings (formal or informal),
losses, damages, fines, penalties, liabilities, costs and expenses of any
nature, including attorneys' fees and court costs, sustained or incurred by or
asserted against any Indemnitee by any person, firm, corporation, governmental
authority, partnership or other entity by reason of or arising out of or
relating to: (i) your violation or breach of any
term, condition, representation or warranty of this Agreement or any applicable
policy or guideline; (ii) your conduct, including but not limited to your
negligence, gross negligence, or willful misconduct; (iii) your use of the
Services, including any improper or illegal uses; (iv) any claim by a former
employee of yours whose employment has been or may be terminated in connection
with or as a result of the execution of this Agreement and performance of the
Services by SmoothCore Hosting ; or (v) any claim
relating to your services or products, or your installation and/or use of any third-party
software, including but not limited to advertising, product liability claims or
infringement of any trademark, copyright, patent, trade secrets or
nonproprietary right of a third party (including, without limitation,
defamation, libel, or violation of privacy or publicity).
8.
MISCELLANEOUS
8.1
Confidentiality
The parties each agree that all
Confidential Information (as defined below) communicated to it by the other is
done so in confidence and will be used only for the purposes of this Agreement
and will not be used to compete with the other party or disclosed to any third
party without the prior written consent of the other party except as permitted
under this Agreement. "Confidential Information" means all
information in any form, including, without limitation, printed or verbal
communications and information stored in printed, optical or electromagnetic
format, which relates to the Services; or computer, data processing or
electronic commerce programs and software; electronic data processing applications,
routines, subroutines, techniques or systems; information which incorporates or
is based upon proprietary information of either party; or information
concerning business or financial affairs, product pricing, financial conditions
or strategies, marketing, technical systems of either party; or any information
concerning customers or vendors of either party; or any data exchange between a
party and any customers or vendors. Exceptions to Confidential Information
include (1) information in the public domain; (2) information developed
independently by a party without reference to information disclosed under this
Agreement; or (3) information received from a third party without restriction
and/or breach of this or a similar Agreement. It is not a violation of this
provision to disclose Confidential Information in compliance with any legal,
accounting or regulatory requirement beyond the control of either Party or, but
in such case, prior to disclosure, the disclosing Party shall give written
notice to the other Party to permit that Party an opportunity to challenge such
disclosure. If either Party is subpoenaed, such Party shall give written notice
to the other Party to permit that Party an opportunity to challenge the
disclosure of Confidential Information. Upon the termination of this Agreement
and upon written request of the disclosing Party, each Party shall promptly
return all Confidential Information of the other Party. This provision shall
survive the termination of this Agreement for two (2) years.
8.2.
Notices
All notices, reports, requests, or
other communications given pursuant to this Agreement shall be made in writing,
shall be delivered by hand delivery, overnight courier service, fax, or
electronic mail, shall be deemed to have been duly given when delivered.
8.3.
Choice of Law and Forum
THIS AGREEMENT, WILL BE GOVERNED BY
THE LAWS OF THE UNITED STATES AND THE STATE OF MICHIGAN, WITHOUT REFERENCE TO
RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE
BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN MICHIGAN, AND YOU IRREVOCABLY
CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.4.
Entire Agreement
This Agreement and all policies and
guidelines incorporated in this Agreement by reference constitutes the entire Agreement
of the parties and may not be modified or altered orally but only by an
agreement in writing signed by both parties.
8.5.
No Fiduciary Relationship
No Third-Party Beneficiaries SmoothCore Hosting is not the agent, fiduciary, trustee or
other representative of you. Nothing expressed or mentioned in or implied from
this Agreement is intended or shall be construed to give to any person other
than the parties hereto any legal or equitable right, remedy or claim under or
in respect to this Agreement. This Agreement and all of the representations,
warranties, covenants, conditions and provisions hereof are intended to be and
are for the sole and exclusive benefit of the parties hereto.
8.6.
Assignments
You may not transfer or assign your
rights, duties, or obligations under this Agreement without SmoothCore
Hosting's prior written consent. SmoothCore Hosting
may assign its rights and obligations under this Agreement and may utilize
affiliate and/or agents in performing its duties and exercising its rights
under this Agreement, without your consent. Subject to that restriction, this
Agreement will be binding on, inure to the benefit of, and be enforceable
against the parties and their respective successors and assignees.
8.7.
No Waiver
SmoothCore Hosting's failure to enforce the strict performance of any
provision of this Agreement will not constitute a waiver of SmoothCore
Hosting's right to subsequently enforce such provision or any other provisions
under this Agreement.
8.8.
Severability
If any provision of this Agreement
is deemed illegal, invalid, void or otherwise unenforceable in whole or in
part, that provision shall be severed or shall be enforced only to the extent
legally permitted, and the remainder of the provision and the Agreement shall remain
in full force and effect. If any provision of this Agreement is deemed to be
invalid, void or unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with respect to
all other applications.
8.9.
Survival
All provisions of this Agreement
relating to your warranties, intellectual property rights, limitation and
exclusion of liability, your indemnification obligations and payment
obligations shall survive the termination or expiration of this Agreement.