Terms Of Service (TOS)
This Terms of Service is a legally binding contract between Intelliracks Manged Hosting ("Intelliracks") and you ("Customer") and governs the purchase and use, in any manner, of all services provided by Intelliracks to Customer.
Service Fees and Billing
Intelliracks will automatically bill your payment method on file on the first day of each Billing Term, as defined below. All fees are billed in United States Dollars ("USD") and are subject to change with thirty (30) days prior notice to you.
Your "Billing Term" is the period of time you have chosen to receive bills for the Services. For example, your Billing Term may be monthly, quarterly, or annually.
Intelliracks is only able to automatically collect payment from customers with credit cards stored on file (as opposed to credit cards used one for one time transactions) or active PayPal subscriptions. All other payment methods (one time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by you. It is your obligation to ensure that reoccurring fees are paid on their due date.
One Time Fees. One time fees, such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Intellirack’s approval. One time fees, such as bandwidth overages are due and payable upon an invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Intellirack’s approval.
Service Credits. SLA Credits (as defined in the SLA) will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. SLA credits shall expire if Customer’s account is fully terminated.
Refunds. Intelliracks offers a thirty (30) day money back guarantee on all shared and virtual dedicated hosting services. All other services, including, but not limited to: setup fees, secure socket layer (SSL) certificates, dedicated servers, and professional services are non-refundable at any time. In order to request a refund, Customer must submit a termination notice as described in this TOS above within thirty (30) days of your first invoice date AND Customer must open a ticket with the billing department requesting a refund.
Disputes. Customers seeking to resolve billing errors are instructed to contact firstname.lastname@example.org.
Non-Payment. All payments are due in full by the end of the first day of the Billing Term. Failure to remit payment for Services within fifteen (“15”) consecutive days of the first day of the Billing Term, shall result in suspension of access to the Services and all Services shall be reclaimed. A $5 "late penalty" will be added to all shared accounts, a $10 "late penalty" will be added to all virtual dedicated accounts and a $25 "late penalty" will be added to all dedicated accounts. All Customer data remaining after thirty (“30”) days of non-payment will be destroyed for security and privacy reasons, unless otherwise required by law. Any Customer owned equipment (colocation) shall become the property of Intelliracks in the event of non-payment.
Customer’s use of Services is subject to the AUP which is found on this website.
Customer shall at all times comply with Intelliracks' then current Acceptable Use Policy ("AUP"), as amended from time to time and which is available through Intelliracks' web site. Intelliracks will notify Customer of complaints received by Intelliracks regarding each incident of alleged violation of the AUP by Customer. Customer agrees that it will promptly investigate all such complaints and immediately take all necessary actions to remedy any actual violations of Intelliracks' AUP. Intelliracks may identify to the complainant that Customer is investigating the complaint and may provide the complainant with the necessary information to contact Customer directly to resolve the complaint. Customer shall identify a representative for the purposes of receiving such communications. Intelliracks reserves the right to install and use, or to have a Customer install and use, any appropriate devices to prevent violations of its AUP, including devices designed to filter or terminate access to the services to the Customer provided by Intelliracks.
Disclaimer or Warranties; Limitations on Liability; Indemnification.
- INTELLIRACKS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS MSA.
- Except as provided in Section 5(e) below, the liability of Intelliracks for damages or injury arising out of the furnishing of, or the failure to furnish, products or services described in the Addenda hereto, including but not limited to mistakes, omissions, interruptions, delays, tortuous conduct, representations, errors, or other defects, whether caused by acts of commission or omission, shall be limited to an amount equal to the price of products and services purchased by Customer during the twelve (12) month period preceding the event which caused the damages or injury. In case of an interruption or failure of any of the services furnished hereunder, including but not limited to power, back-up power, HVAC, transmission and Internet services, Intelliracks shall use commercially reasonable efforts to restore service as soon as possible. If Intelliracks elects, it may substitute a reasonably equivalent service. In no event shall Intelliracks be liable for unauthorized access to Customer’s transmission facilities or for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure or information through accident, fraudulent means or devices, or any other method.
- THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT ADDENDA FORM ARE CUSTOMER'S SOLE REMEDIES FOR INTELLIRACKS' FAILURE TO MEET THE GUARANTEES STATED IN THOSE DOCUMENTS, UNLESS SUCH FAILURE IS DUE TO INTELLIRACKS INTENTIONAL BREACH OF THE AGREEMENT OR WILLFUL MISCONDUCT. THIS PROVISION DOES NOT LIMIT CUSTOMER'S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 4(e) BELOW IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THE AGREEMENT.
- EXCEPT FOR THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, INTELLIRACKS SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER'S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY INTELLIRACKS' INTENTIONAL BREACH OF THE AGREEMENT, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- CUSTOMER HEREBY RELEASES INTELLIRACKS FROM ANY LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE DATA HAS CHANGED SINCE THE TIME THAT INTELLIRACKS WAS LAST REQUIRED BY THE AGREEMENT TO PERFORM A BACK UP.
- Notwithstanding any other provision hereof, Intelliracks shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including but not limited to damages for lost profits or lost revenues), whether or not caused by the acts or omissions or negligence of its employees or agents, and regardless of whether such party has been informed of the possibility or likelihood of such damages.
- Intelliracks shall not be liable for any failure of performance or equipment due to causes beyond its reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, terrorist attack, wars, unavailability of rights-of-way or materials, or strikes, lock-outs, work stoppages, or other labor difficulties. In the event any of the foregoing occur and Intelliracks is unable to deliver the services contemplated by this MSA for fourteen (14) consecutive days, Customer shall not be obligated to pay Intelliracks for the affected services for so long as Intelliracks is unable to deliver them; provided, however, that the Term shall be extended for a period of time equal to the period of time for which Intelliracks was unable to provide and Customer was not required to pay for the affected service.
- Each party shall indemnify the other against any claim, loss, damage, expense or liability (including reasonable attorney’s fees and court costs) (collectively, “Claims”) to the extent that such Claims are caused by the negligence or willful misconduct of the indemnifying party. The Customer shall be liable for and indemnify and defend Intelliracks from and against any claims in anyway arising from or related to:
- the alleged infringement of patent, trademark, design, copyright or any other intellectual property rights in relation to the Customer’s use of the products and services described in this MSA and;
- use or inclusion of any information, photographs, art work or other content (including without limitation claims based on invasion of privacy, right of publicity, the Communications Decency Act of 1996, obscenity or pornography, and the violation of any states or ordinances or other laws).