WEB HOSTING TERMS OF SERVICE
These Terms of Service are an agreement (the “Agreement”) between Serious Inc. (“Serious Inc”) and you (“Client” or “you” or “your”). This Agreement states the terms and conditions of your use of the products and services (the “Services”) made available by Serious Inc and the serioussem.com website. By using any of the Services, you agree to be bound by all of the terms and provisions of the Agreement.
Subject to the terms and conditions of this Agreement, Serious Inc will provide Web Hosting services for Client subject to the following terms:
a) Length of Service.
Client agrees to an initial one (1) month or twelve (12) month contractual term of service (“Term”). The length of contract required is based on the type of service desired by Client and shall be determined solely by Serious Inc.
b) Service Start Date.
The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Serious Inc receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.
The owner of the payment method (credit card, Google checkout, PayPal) which is used for payment on the account is designated as the authorized owner of the account.
THIRD PARTY PROVIDERS
All transactions with third party providers are solely between you and the individual provider. Serious Inc is not the agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
All discounts, promotions and special third party offers may be subject to additional restrictions and limitations by the third party provider. All transactions with third party providers are subject to the terms and conditions under which the provider agrees with you to provide goods or services. You should confirm the terms of any purchase and/or use of goods or services with the specific third party provider with whom you are dealing.
Serious Inc does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these providers at your own risk. Serious Inc does not warrant the accuracy or completeness of any information regarding third party providers.
USE OF THE SERVICES
All Services may only be used for lawful purposes. The laws of the United States of America apply to all Clients of serioussem.com. You agree to indemnify and hold harmless, Serious Inc, from any claims resulting from your use of Serious Inc Services. You represent and warrant to Serious Inc that you are 18 years of age or older. Any use of or access to the Services by anyone under 18 years of age is prohibited.
Use of the Serious Inc Services to infringe upon any copyright or trademark is prohibited. This includes, but is not limited to, unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another’s copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email abuse@SeriousSEM.com with the information pertaining to your claim.
Using a shared account as a backup/storage device is not permitted, with the exception of one cPanel backup of the same account. Please do not take backups of your backups.
Examples of unacceptable material on all Shared and Reseller servers include:
X IRC Scripts/Bots
Image Hosting Scripts (similar to Photobucket or Tinypic)
Mail Bombers/Spam Scripts
File Dump/Mirror Scripts (similar to Rapidshare)
Sale of any controlled substance without prior proof of appropriate permit(s)
Sites promoting illegal activities
Forums and/or websites that distribute or link to Warez/pirated/illegal conntent.
Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com).
All of the files on our shared hosting accounts must pertain to your website(s). Serious Inc shared hosting may not be used for massive file storage systems, or backup storage solutions. You are not authorized to use Serious Inc for the hosting of download mirrors. You may have files for your clients/users/ to use, however if your website is based around a user downloading files, you will need to look obtain a VPS solution.
It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, you must set permissions on most directories to 755 or as restrictive as possible. Clients are responsible for all actions taken under their account. This includes the compromise of credentials such as Client name and password. You must use a secure password.
Solely for the purpose of providing the Services, you hereby grant to Serious Inc the right and license to access, store and use any content provided by you, and to remove all or any portion of such content if you violate the provisions of the Serious Inc Service Agreement or this Agreement.
Serious Inc may from time to time, and at any time, monitor your use of the Services to ensure your compliance with the provisions of this Agreement.
TERMS OF PAYMENT
Payment for all Services is due and payable in advance of the time when such Services are provided.
Until you notify Serious Inc of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with Serious Inc.
Listed fees for the Services do not include any sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to your invoice as a separate charge to be paid by you. All fees are non-refundable when paid unless otherwise stated.
All invoices must be paid within ten (10) days of the invoice due date. Any invoice that is outstanding for more than ten (10) days may result in the suspension or termination of Services. Access to your account will not be restored until payment has been received. If you fail to pay the fees as specified herein, Serious Inc may suspend or terminate your account and pursue the collection costs incurred by Serious Inc, including without limitation, any arbitration and legal fees, and reasonable attorneys’ fees. Serious Inc will not activate new Services for Clients who have an outstanding account balance.
Dedicated servers will be reclaimed and all content deleted if you fail to make a timely payment. If you make a late payment dedicated servers will not be automatically reactivated. You must contact Serious Inc directly after you make a late payment to reactivate the dedicated server.
ZERO TOLERANCE SPAM POLICY
Serious Inc has zero tolerance for Clients sending unsolicited e-mail, bulk emailing, and spam. “Safe lists”, purchased lists, and selling of lists will be treated as spam. Any Client who sends out spam will have such Client’s account terminated, and may be terminated without notice. Serious Inc also reserves the right to charge Clients who engage in spam mailing a consulting fee of $250 per hour for any remedial actions that Serious Inc elects to take in the event that, as a result of a Client’s activities, Serious Inc servers or IP space are placed in any third-party mail filtering software or black hole lists. Serious Inc also reserves the right to require all client’s requesting more than 32 IP addresses to pay a deposit of up to $250 in order to be allowed to send emails. The deposit will be refunded at cancellation time, as long as no spam complaints have been received.
BACKUPS AND DATA LOSS
Your use of Serious Inc Services is at your sole risk. Serious Inc backups run constantly mirroring all of your data on to a second disk to protect against hardware failure. We also backup all Shared, Business, Reseller, and Budget VPS’s, client’s files to offsite backup servers every night. Serious Inc is not responsible for files and/or data stored on Serious Inc servers. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Serious Inc servers. Serious Inc does not take backups of Dedicated Servers or Premium VPS’s, unless the Client has purchased the R1Soft Backup Solution.
UNLIMITED HOSTING POLICY
Serious Inc will allocate Clients an unlimited amount of disk space and bandwidth. The unlimited disk space and bandwidth may only be used to store and transfer files relevant to the website(s) being hosted. If a Client causes continuous server or service interruptions under their current plan, then they will be asked to upgrade to a more powerful plan (Business, VPS, or Dedicated). In these extreme cases, the client will be notified of the need to upgrade. We will NEVER terminate a Client’s account, and we will only suspend accounts in the most extreme circumstances (in the event of causing the server to crash), or if the client has not contacted us after we send out warning emails of the abuse.
Clients may not use more than their burstable RAM. If a Client repeatedly overloads their VPS’s burstable RAM then that Client will be required to upgrade to the next level up of a VPS. Using more than your burstable RAM will cause your VPS to crash. Because of Serious Inc advanced monitoring systems, we will reboot your VPS for you to minimize downtime, but repeat offenders will need to upgrade to a higher level. In addition, Clients using their Burstable RAM more than 80% of the time will also be required to upgrade to a higher level VPS, to help keep VPS usage fair among Clients.
VPS accounts may also not exceed a 15 minute load average greater than two (2) times the amount of CPU cores given.
ABUSE TOWARDS SERIOUS INC
At Serious Inc, Clients are treated with respect. In return, Serious Inc expects an equal level of respect from their Clients. If Serious Inc feels that a Client is being disrespectful or demeaning towards any staff member, the Client may be asked to move to a new hosting provider. That Client will then be given one week (7 days) to move to a new host. After this time period, Serious Inc reserves the right to completely remove/terminate Client’s account. The Client will not be entitled to any refunds. However, refunds may be issued for advanced payments if Serious Inc chooses to do so.
SERVER ABUSE/CUSTOMER ABUSE
Any attempted attack against any Serious Inc server and/or Client being hosted by Serious Inc will result in automatic termination of the offending account with no refund, including, but not limited to, no refunds for advanced payments, and a permanent banning of the offending Client.
VIOLATION OF SERIOUS INC SERVICE AGREEMENT
Failure to fully comply with the Serious Inc Service Agreement or this Agreement may result in an immediate suspension and/or termination without any refund. There will be no refunds for advanced payments. Serious Inc Clients must adhere to their Serious Inc Service Agreement and with this Agreement. If a Client is uncertain about the terms of the Serious Inc Service Agreement or this Agreement, or has any other questions about these Agreements, they should contact Serious Inc via the Serious Inc support portal (client area) for clarification.
Serious Inc reserves the right to remove/suspend any account without notice of the Serious Inc Service Agreement or this Agreement is violated. If a Client violates the Serious Inc Service Agreement or this Agreement, Serious Inc will either give the Client warning, if Serious Inc so chooses, or immediately terminate/delete Client’s account. No warning is required.
The amount a Client pays for hosting is subject to change at the sole discretion of Serious Inc. In this event Serious Inc will provide all affected clients a minimum of 30 day notice. Serious Inc reserves the right to change prices listed on http://www.serioussem.com.
CHANGES TO THE AGREEMENT OR TO THE SERVICES
Serious Inc may modify, add, or delete portions of this Agreement at any time. Serious Inc will post a notice on the Serious Inc website for a period of 30 days before the effective date of any such change. Thereafter, your use of any of the Services shall constitute agreement to such change.
Serious Inc may modify, change, or discontinue any aspect of the Services at any time.
All cancellations must be received through the Client area before the next billing cycle begins. Failure to cancel your account from the Client area could result in your being automatically billed, for which refunds will not be given. Custom Dedicated Cluster Solutions must have cancellation request received at least 14 days prior to the next bill being due, failure to provide written cancellation before this deadline, will result in an automatic renewal.
Serious Inc may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due; (ii) you violate this Agreement; or (iii) as otherwise specified in this Agreement. In such event, Serious Inc shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.
Upon termination of the services for any reason, user content, user websites, and other data will be deleted.
TRANSFER OF AGREEMENT
Client may not assign or transfer this Agreement, in whole or in part without the prior written consent of Serious Inc. In the event that Client contemplates whole or partial sale of it’s business, ownership change, or change in jurisdiction, Client shall notify Serious Inc by mail, facsimile or email no less than 60 days prior to the effective date of the event.
CHARGEBACKS AND DISPUTES
In the event that we are notified that a chargeback or other dispute is filed, all of your active services will be immediately terminated from our system, and your account will be immediately closed. Threatening to chargeback in any communication with Serious Inc, can at Serious Inc sole discretion result in permanent account closure. If legal proceedings are commenced to resolve a dispute arising out of, or relating to, this Agreement, Serious Inc shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.
SERIOUS INC VPN DMCA
Serious Inc does not condone the use of our Services to facilitate copyright infringement. Serious Inc respects and abides by U.S. copyright laws including the requirements of the DMCA. Serious Inc implements an automated virtual private network (“VPN”) service. Our service is fully automated and we do not log our user’s activities. We do not, in any way, select the recipients our users transmit to or the material our users access while using our service. We do not store, access, or modify any content that our users access while using our service. Serious Inc VPN service qualifies as a provider of transitory digital network communications under 17 U.S.C. § 512(a) of the Copyright Act. As we do not store any content accessed by our users, we are unable to delete any such content that may be infringing. Because we do not log our Clients’ activities in order to protect and respect their privacy, we are unable to identify particular users that may be infringing the lawful copyrights of others. To the extent Serious Inc can, Serious Inc will do its best to assist copyright owners and their agents that report copyright infringement by a Client that is using Serious Inc Services. However, before investigating any report of copyright infringement, Serious Inc requires the copyright owner or its authorized agent to give Serious Inc a valid and complete DMCA takedown notice if the copyright owner wishes to report what it believes is infringing activity by a third party using Serious Inc VPN Services. If a copyright owner is unsure whether content on the Serious Inc network infringes the owner’s copyright, then Serious Inc requests that the owner please first contact an attorney. Please deliver notices to Serious Inc’ designated DMCA Agent.
DISCLOSURE TO LAW ENFORCEMENT
Serious Inc may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. Serious Inc will cooperate fully with law enforcement agencies.
SERIOUS INC PROPRIETARY CONTENT
Except for content provided by Client, all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (“Serious Inc Content”), are the property of Serious Inc. Serious Inc Content may not be used, modified, copied, distributed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. Client may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Serious Inc Content.
The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. If you are located in a Sanctioned Country or if you are listed as an SDN, you are prohibited from registering for or using the Services. In addition, you may not use any Serious Inc Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any Sanctioned Country.
Serious Inc will exercise no control whatsoever over the content of the information passing through the network, email or web site.
Serious Inc makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Serious Inc also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Use of any information obtained by way of Serious Inc is at Client’s own risk, and Serious Inc specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection. Serious Inc does not represent guarantees of speed or availability of end-to-end connections. Serious Inc expressly limits its damages to Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Serious Inc specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
TRADEMARKS AND COPYRIGHTED MATERIAL
Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
Serious Inc is not “HIPAA compliant.” You are solely responsible for any required compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Serious Inc does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. You agree that Serious Inc is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA.
Serious Inc shall not be responsible for any damages a Client’s business may suffer. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Serious Inc and its Clients. Serious Inc makes NO WARRANTIES of any kind, expressed or implied for Services provided. Serious Inc makes NO WARRANTIES of MERCHANTABILITY or FITNESS for a particular purpose.
IN NO EVENT WILL SERIOUS INC ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF SERIOUS INC IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding anything to the contrary contained herein, Serious Inc’ LIABILITY to you, or any party claiming through you, FOR ANY CAUSE whatsoever, and regardless of the form of the action, is LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SERIOUS INC FOR THE SERVICES IN THE THREE (THREE) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. This is an aggregate limit. The existence of more than one claim hereunder will not increase this limit.
Client shall indemnify and hold Serious Inc harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Serious Inc directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.
By using the Services, you hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator chosen by Serious Inc and will be held at the AAA location chosen by Serious Inc in Tennessee. Payment of all filing, administrative and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Serious Inc will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator’s award is final and binding on all parties. The arbitrator’s authority to resolve and make written awards is limited to claims between you and Serious Inc alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate litigation or any other proceeding against Serious Inc in violation of this paragraph, you agree to pay Serious Inc’ reasonable costs and attorneys’ fees incurred in connection with Serious Inc’ enforcement of this paragraph.
GOVERNING LAW; JURISDICTION
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon an alleged tort, shall be governed by the internal laws of the State of Tennessee, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
This Agreement, including documents incorporated herein by reference or otherwise referred to herein, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement and such other agreements constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.