Terms of Service

Legal: Terms of Service

This Terms of Service (this "Agreement") and the Serverminds AcceptableUse Policy ("AUP") govern your purchase and use of all Serverminds services (collectively, the "Services"), as described in the Order Form(s) submitted by you and accepted by Serverminds ("Service Order"). Acceptance of any terms or conditions different from those contained herein by Serverminds will not be deemed by provision of service, but only by electronic or written signature of an officer of Serverminds. You must register and accept the terms of this Agreement and the AUP in order to use the Services.
Serverminds may modify any of the terms and conditions contained in this Agreement and the AUP, at any time, in its sole discretion. Any modifications are effective upon posting of the revisions on the Serverminds web site (the "Site"). Your continued use of the Services following Serverminds posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify Serverminds of your termination of this Agreement in the manner described in the Cancellation section below.

Serverminds agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).

The Use of Serverminds services constitutes acceptance and agreement to these Terms of Service as well as the Serverminds AUP.

 

Agreement Term

This Agreement will be for an initial "Term" of 1 month from the date the Services are first provided by Serverminds. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term or any Renewal Term for a period of thirty (30) days unless you provide Serverminds with written notice of termination at least four days (4) before the end of the Initial Term or Renewal Term (also referred to interchangeably and collectively as "Term"), whichever is then applicable. To provide your notice of termination, you must submit a ticket to the Billing department and fill out the corresponding cancellation form to initiate the cancellation of your service. Pricing and duration of Terms may be modified only if in writing (such as a Service Order) signed by Serverminds.

Termination and Cancellation

This Agreement may be terminated: (i) by you or Serverminds during any Renewal Term, without cause, by giving the other party no less than four (4) days prior written notice, or a greater number of days prior notice if specified in a Service Order accepted by Serverminds; (ii) by Serverminds in the event of nonpayment by you as provided in the section below or (iii) by Serverminds, at any time, without notice, if, in the sole judgment of Serverminds, you are in violation of any terms or conditions of the AUP. If you terminate this Agreement, or if Serverminds terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately and without setoff or delay all charges, fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the Term and any other amounts including, but not limited to, bandwidth overage charges that you owe to Serverminds under this Agreement.

All Customer data remaining after the cancellation date will be destroyed for security and privacy reasons, unless otherwise required by law.

Service Fees

You will immediately pay, upon receiving an electronic invoice from Serverminds, all charges for your use of the Services at the then current Serverminds prices for that category of service or any special offer applicable to your account as determined by Serverminds. You are responsible for paying all federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to the Services. If you are a resident of West Virginia, your purchase of Services is subject to the West Virginia sales tax rate of x.xx%. All setup fees are subject to an x.xx% tax. If you default on any of your obligations under this Agreement and Serverminds must engage a collections effort to collect past due sums associated with your use of Services, you are responsible for all costs of collection of all amounts owed under this Agreement, including reasonable attorney's fees of Serverminds.

Service Fee Payment

You will pay all charges for the first month of service in advance on the first day of the Initial Term. You will pay all subsequent charges for Services in their entirety in advance on the anniversary day of each successive month. You must pay for the Services by credit card, Paypal or other payment gateways offered by our Merchants. You authorize Serverminds to charge your credit or debit card to pay for any charges that may apply to your account. You have a specific obligation to immediately notify Serverminds of any changes to your card account (including applicable account number or cancellation or expiration of the account, your billing address, or any information that may prohibit Serverminds from properly charging your account). Failure to immediately and fully pay your fees for Services and applicable taxes when invoiced by Serverminds shall be a material breach of this Agreement, justifying Serverminds to suspend its performance and terminate this Agreement. If Serverminds terminates this Agreement for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to Serverminds under this Agreement including, but not limited to, bandwidth overage charges. You are responsible for any costs that Serverminds incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees.

Credit cards that are declined for any reason or Paypal payments that are either rejected or not made when Services are invoiced are subject to an additional processing fee. Service will be immediately interrupted on any account that is unpaid. Service interrupted for non-payment is subject to a $50.00 unsuspension charge per Service. Accounts not paid by the due date are subject to a $10.00 late fee that accrues daily until paid in full. Accounts that are not collectable by Serverminds may be turned over to an outside collection agency for collection. If you account is turned over for collection, you agree to pay the company an additional "Collection" fee of not less than $50.00 nor more than $150.00.

Refund and Disputes

- All payments to Serverminds are non refundable - and include any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time that the dispute occurred. If you dispute a charge to your credit card issuer / payment gateway that, in Serverminds sole discretion, is a valid charge under the provisions of this Agreement and/or AUP, you agree to pay Serverminds an additional "Investigation Fee" of $150.00.

Failure to Pay

Serverminds may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not, in any way, relieve the Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and all collection fees, including legal expenses.

Overage Charges

All our Usage based Services are delivered with usage allotments such as, but not limited to Storage Space and Bandwidth. If you exceed this allotment for any reason in any calendar month, even if you have cancelled service with Serverminds during the month, you will be charged for this excessive usage. Overage billing is done in arrears, and you will receive your bill for overage usage during the first week of the following month that the overage occurred. It is your responsibility to monitor your bandwidth usage and to pay for all overages. If you are a reseller, it is your responsibility to monitor the bandwidth usage of your client(s) as you are solely responsible for any and all overages incurred by them.

Notification of Violations or Infractions

Serverminds is under no duty to look at each client's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet related activities.

Content and Data

Serverminds believes in freedom of speech; however, any content (written, visual, or implied) in the following areas will not be tolerated and is grounds for immediate suspension of service: racism or prejudice due to color, creed, or belief; any violent/malicious/obscene content written, visual or implied. We will not tolerate any type of hate site including terrorist related websites on our network. If we receive notice that there is such a hate site hosted within our network, the customer hosting the material will be notified immediately. They are required to remove the content within a certain timeframe or will face account suspension and/or termination.

If any person contacts us about content they have found on the Serverminds Network that copyrights their own material or that they wish to be removed, we require a proper DMCA notice to begin investigation.

 

Serverminds agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads and other situations involving customer data. Customer assumes ultimate responsibility for data integrity, retention, security, backup, and ownership. In the event that Serverminds handles Customer data, i.e., when replacing hard drives, Serverminds will act in accordance with PCI guidelines to ensure data is securely handled.

Violation of Terms

Any violation of these Terms of Service or the Acceptable Use Policy will result in the following:
A Policy Enforcement Notice is sent via email, to client with a 24 hours notice for resolution:

24 hours is the standard resolution time; situations involving law enforcement, phishing scams, fraud, password harvesting, network interference, Denial or Disruption of service, IRC related misuse, or other malicious activity can reduce the notification time frame.

 

• First Violation: Any user, which Serverminds determines to have violated any element of the terms, shall receive an e-mail notifying them of the violation. The service may be subject at Serverminds sole discretion to a temporary suspension pending a client's agreement in writing to refrain from any further violations.
• Second Violation: Any user, which Serverminds determines to have committed a second violation of any element or portion of the terms shall be subject to immediate suspension or termination of service without further notice.

 

We reserve the right to nullroute or drop the section of IP Address space involved in any SPAM or Denial-of-Service complaints if it is clear that the offending activity is causing harm to parties on the Internet. In certain cases, we may have to take this action prior to sending a Policy Enforcement Notice.

 

Disclosure to Law Enforcement

The AUP specifically prohibits the use of our service for illegal activities. Therefore, client agrees that Serverminds may disclose any and all client information, including assigned IP addresses, account history, account use, etc. to any law enforcement agency who makes a written request without further consent or notification to the Client. In addition Serverminds shall have the right to terminate all service set forth in this Agreement if requested to do so as a result of any action of any law enforcement or government agency.

IP Address Ownership

If Serverminds assigns you an Internet Protocol address for your or your clients use, the right to use that Internet Protocol address shall belong only to Serverminds, and Client shall have no right to use that Internet Protocol address except as permitted by Serverminds in its sole discretion in connection with the Services, during the term of this Agreement. Serverminds shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by Serverminds and Serverminds reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Our allocation of IP addresses is limited by ARIN's new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.

Laws

Client agrees to abide by all local, state, and federal laws pursuant to services delivered in West Virginia, united states of america. this agreement is made under and will be construed in accordance with the laws of the state of West Virginia, without regard to conflict of law principles. exclusive venue and jurisdiction for any and all legal remedies arising out of or related to this agreement shall be Monongalia county, Morgantown, West Virginia. each party irrevocably consents to the foregoing jurisdiction and venue requirements and waives any and all objections to such requirements.

Indemnification

Client agrees to indemnify and hold harmless Serverminds, Serverminds,'s affiliates, and its respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to customer's content, illegal activity and/or actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.

Limitation of Liability

Except as described in the SLA, Serverminds shall not be liable to customer for harm caused by or related to customer's services or inability to utilize the services unless caused by gross negligence or willful misconduct. Serverminds shall not be liable to customer for lost profits, indirect, special or incidental, consequential or punitive damages. notwithstanding anything else in this Agreement, the maximum aggregate liability of Serverminds and any of its employees, agents or affiliates, under any theory of law shall not exceed the amount paid by the customer for Services for the six (6) months prior to the occurrence of the event(s) giving rise to the claim.

Arbitration

Any controversy or claim arising from service or related to this Terms of Service or breach therein in excess of $1000.00 shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The venue and jurisdiction requirements set forth above apply to any arbitration proceedings. The resulting judgment rendered by a licensed arbitrator may be entered in any court having valid jurisdiction.

Legal Compliance

By accepting these Terms of Service, Customer represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist supporting country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Customer further represents and warrants that he/she has full authority and power to execute this Agreement on behalf of the Company he/she represents, if any. Additionally, Customer warrants that he/she is at least 18 years of age or older and are not otherwise legally incapacitated to execute this Agreement.

 

Effective Date

Serverminds, Inc. declares the effective date of these Terms of Service (V1.1) to be 01/02/2010.