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Terms of Service
1. THE AGREEMENT
These Terms of Service form part of an agreement (this/the "Agreement") between Linkuphost, ("LinkUpHost", “our”, “we”, “us”) and Customer (“user”,“your”, “you”). These Terms of Service governs provision of LinkUpHost ("LinkUpHost", “our”, “we”, “us”) services (the "service") and is effective as of the moment Customer indicates agreement at the LinkUpHost website or as of the moment Customer uses any LinkUpHost website, any email or element of the Service (whichever comes first). In addition to these Terms of Service, this Agreement consists of the following, each of which is incorporated into this agreement by this reference: LinkUpHost 's service level agreement, posted at http://www.linkuphost.com/legal/sla.html (the "SLA"); LinkUpHost 's acceptable use policy, posted at http://www. linkuphost.com/aup. html (the "AUP"); LinkUpHost 's privacy statement, posted at http://www.linkuphost.com/privacy.html (the "Privacy statement ").
2. LINKUPHOST'S OBLIGATIONS.
Contingent on Linkuphost's acceptance of your Order, and subject to these Terms of Service, Linkuphost agrees to provide the Services. Linkuphost agrees to follow security procedures at least as stringent, in Linkuphost's reasonable judgment.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Linkuphost Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Linkuphost's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify Linkuphost of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Linkuphost's reasonable determination shall control.
4. ACCESS TO THE SERVICES.
You may access the Services via the web site of LinkUpHost or according Linkuphost-provided instructions via e-mail. Linkuphost may modify its web site or support site, or may transition to new IP addresses at any time.
5. SERVICE LEVEL AGREEMENT.
The Service Level Agreement(s) listed below are part of this Agreement for those Services you are buying from LinkUpHost:
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.
Linkuphost will charge you the fees stated in your Order. If you have made a minimum commitment in your Order, and your actual usage does not meet or exceed the minimum commitment, Linkuphost will charge you the difference between your minimum commitment and your actual usage. Unless you have made other arrangements, Linkuphost will charge you as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, services) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Linkuphost's option; Unless otherwise is written in the Order, your billing cycle will be monthly, beginning on the date that Linkuphost first makes the Services available to you. If you are using Linkuphost's billing services, Linkuphost may at its option, either include the fees, charge backs, and other items with your recurring or non-recurring fees, as applicable, or deduct them from your remittances. Linkuphost may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to you are rejected for any reason. Linkuphost may charge interest on overdue amounts at 5% per month (or the maximum legal rate if it is less than 5%). If any amount is overdue by more than thirty (30) days, and Linkuphost brings a legal action to collect, or engages a collection agency, you must also pay Linkuphost's reasonable costs of collection, including attorney fees and court costs. All Purchases must be made in United States Dollars (USD) with credit or debit card made via PayPal. All fees are stated and will be charged in United States Dollars (USD). Accounts can be opened in United States Dollars (USD) only. Any "credit" that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within five days of the date charged are conclusively deemed accurate. You must provide Linkuphost with accurate factual information to help Linkuphost determine if any tax is due with respect to the provision of the Services, and if Linkuphost is required by law to collect taxes on the provision of the Services, you must pay Linkuphost the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. All amounts payable for Services and Credits are stated exclusive of any VATunless stated otherwise. We reserve the right and shall be entitled to charge VAT and other taxes and duty as appropriate.You authorize Linkuphost to obtain a credit report at any time during the term of the Agreement. You agree that you are liable for all taxes and duty resulting from your purchase of services from us and use of our Services. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.
8. REFUND POLICY.
9. FEE INCREASES.
If you are under a month-to-month contract, then we may increase fees at any time on twenty days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees any time on thirty days advance written notice.
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement or the Acceptable Use Policy , (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Linkuphost or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed one hundred USD) upon reinstatement of the Services.
11. TERMINATION FOR BREACH.
We may terminate the Agreement without notice to you and without providing
any refund if any of the following occurs: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) you use your Service in violation of the AUP and fail to remedy the violation within one (1) day of our written notice, (v) you violate the AUP more than once, even if you cure each violation, or (vi) you fail to comply with any other provision of the Agreement and do not remedy the failure within five (5) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12. ACCESS TO DATA.
12.1 You will not have access to your data stored on the Linkuphost system during a suspension or following termination.
12.2 We backup the Linkuphost systems and virtual private servers on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup (snap-shot). In addition, we may destroy all backups in Linkuphost's judgment. These backups may not be available to you or, if available, may not be useful to you outside of the Linkuphost systems and virtual private servers.
12.3 You agree that you will maintain at least one additional current copy of your programs and data stored on the Linkuphost systems and virtual private servers somewhere other than on the Linkuphost systems and virtual private servers.
13. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES.
Linkuphost is not responsible to you for unauthorized access to your data or the unauthorized use of the Services.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. The Services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
15. EXPORT MATTERS.
You represent and warrant that you are not a person to whom Linkuphost is legally prohibited to provide the Services.
16. CONFIDENTIAL INFORMATION.
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms and Conditions;
- to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law;
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least three days prior to disclosing Confidential Information under this subsection, unless the law forbids such notice.
17. LIMITATION ON DAMAGES.
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from our negligence.
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Linkuphost Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Linkuphost Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. We will choose legal counsel to defend the claim. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim.
19. WHO MAY USE THE SERVICE.
You cannot resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Unless otherwise agreed, Linkuphost will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
20. CHANGES TO THE ACCEPTABLE USE POLICY.
We may change our Acceptable Use Policy, Service Level Agreement or Terms of Service. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or Terms of Service, or (iii) two (2) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement upon the first renewal following the date the change became effective for your account. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
Your routine communications regarding the Services should be sent to: email@example.com
If you want to give us a notice, you should send it by electronic mail to: firstname.lastname@example.org.
Linkuphost's routine communications regarding the Services and legal notices will be sent to your account and e-mail address by electronic mail. Linkuphost may give notice of an amendment to the AUP or these Terms of Service by posting the notice on your accout at the support site of LinkUpHost or to your e-mail address by electronic mail. Notices are deemed received as of the time delivered. Notices must be given in the English language.
22. IP ADDRESSES.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Linkuphost in connection with Services. You agree that Linkuphost may, as it determines necessary, change the IP addresses assigned to you by Linkuphost in connection with Services. You agree that Linkuphost may, as it determines necessary, make modifications to DNS records and zones on Linkuphost managed or operated DNS servers and services.
You may not assign the Agreement without Linkuphost's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Linkuphost may use third party service providers to perform all or any part of the Services, but Linkuphost remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Linkuphost performed the Services itself.
24. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
25. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the Republic of Bulgaria. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the courts in Sofia, the Republic of Bulgaria, and we each agree not to bring an action in any other city, country or state. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Linkuphost or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than one month after the time that the claim accrued.