This Terms of Service Agreement governs customer's purchase and use, in any manner, of all services, including Dedicated and Managed Hosting, as described in the Order Form, ordered by customer and accepted by DCS Pacific Star, LLC. (www.dcsmanage.com) and describes the terms and conditions that apply to such purchase and use of the Services. DCS Pacific Star, LLC. (www.dcsmanage.com) reserves the right to change or modify any of the terms and conditions contained in this Agreement, the 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 modification will be effective upon posting of the revisions on our site.
DCS Pacific Star, LLC. (www.dcsmanage.com) may post changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY DCSMANAGE.COM OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED BELOW.
1. This Agreement shall be for an "Initial Term" of thirty (30) days for all services -- including Dedicated and Managed Hosting. Customer agrees to all terms and conditions of services provided by DCS Pacific Star, LLC. (www.dcsmanage.com), beginning upon receipt by fax, e-mail, or express mail.
2. All charges for Services (including installation and professional support fees) are non-refundable and must be paid in advance according to the then current price applicable to the Services. Upon registration for Dedicated and Managed hosting, customer must choose to pay for the Services either by credit card, Paypal or upon your receipt of an invoice. If customer chooses to pay by credit card upon registering for Dedicated Hosting services, customer thereby authorizes DCS Pacific Star, LLC. (www.dcsmanage.com) to charge your credit or debit card to pay for any charges that may apply to your account. Customer agrees that DCS Pacific Star, LLC. (www.dcsmanage.com) may accumulate any supplemental charges, as described in the Order Form, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $20 and then charge your card. Customer must notify DCS Pacific Star, LLC. (www.dcsmanage.com) 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 DCS Pacific Star, LLC. (www.dcsmanage.com) from charging your account.
DCS Pacific Star, LLC. (www.dcsmanage.com) may also send periodic invoices to customer for any applicable Supplemental Charges associated with your use of the Services. Customer agrees to pay to DCS Pacific Star, LLC. (www.dcsmanage.com) the amount indicated in each invoice by the due date reflected on the invoice. If customer fails to pay any fees and taxes within three (3) days from applicable due date for credit card or invoice payments, a late payment fee of $25.00 become payable by you to DCS Pacific Star, LLC. (www.dcsmanage.com). In addition, customer's failure to fully pay all fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, justifying DCS Pacific Star, LLC. (www.dcsmanage.com) suspension of its performance of the Services and/or termination of this Agreement. Customer is responsible for any fees associated with reinstated of Services. Any such termination would not relieve customer from paying past due fees plus interest. In the event of collection enforcement, customer will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
3. 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 DCS Pacific Star, LLC. (www.dcsmanage.com) with notice of termination either (a) at least thirty (30) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable.
4. Initial payment is due upon activation of account. Activation takes effect on the date of receipt of payment, and will be renewed automatically for identical successive periods. Any changes made to the customer's package shall be billed accordingly.
5. All orders are subject to acceptance by DCS Pacific Star, LLC. (www.dcsmanage.com). An order will be deemed accepted by our company when confirmation of the order is sent to the customer. We may refuse to accept any order, or delay acceptance awaiting completion of conditions the company may choose to exercise. Such refusal of such conditions may not be unreasonable, however, and DDCS Pacific Star, LLC. (www.dcsmanage.com) agrees to provide the customer with reasonable notice by E-mail or fax of any intent to delay or decline the acceptance of any order.
6. DCS Pacific Star, LLC. (www.dcsmanage.com) reserves the right to suspend the customer's account and services without notice should there be any problems with the customers method of payment. This includes expired credit cards, declined credit cards, inactive credit cards, and invalid checks.
7. Bandwidth utilization will be monitored via MRTG and calculated by the following method: Monthly Avg. In + Monthly Avg. Out / 8 Bits x 60 seconds x 60 minutes x 24 hours x 30.5 days = Total Data Transfer (GB).
8. Customer will be responsible for all server management and administration related issues. Available managed services include: OS restore, software installation, hardware installation, kernel / apache recompile, and security (patches) update. Standard service tickets will be processed within 3-5 days. Managed services fees are charged at $50 per hour. For priority (immediate) services, professional (remote hand) support is available at $100.00 per hour with a one (1) hour minimum requirement.
9. DCS Pacific Star, LLC. (www.dcsmanage.com) reserve the right to levy a penalty fee of $25.00 per violation of the Acceptable Use Policy and Terms of Service Agreement.
10. Each port is set at 100Mbps. The bandwidth package for all subsequent months will be based on the order per the customer. In the event of over-usage, customers will incurred a fee of $0.50 / 1GB for the aforementioned server.
11. In accordance with ARIN guidelines, each server is allocated with 1 IP with no exceptions. You may request to obtain the remaining 9 ips to be part of your IP space as long as valid justification per ARIN regulations is supported. Same terms and conditions apply for the request of 10 additional IP's at the cost of $10.00 per month. Each server is allowed 20 IP's maximum. Please contact firstname.lastname@example.org to request for ARIN's valid justification form.
12. Each customer is required to utilize available network bandwidth so as to allow for reasonable network performance by all DCS Pacific Star, LLC. (www.dcsmanage.com). Because bandwidth is a shared resource, excessive consumption of network bandwidth can interfere with or completely prevent normal network performance for other servers. Persistent, high-volume use of bandwidth-intensive tools and applications can and does prevent other users from being able to access the network.
DCS Pacific Star, LLC. (www.dcsmanage.com) shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from the customer or www.dcsmanage.com servers. Customer also agrees to take full responsibility for all taxes and fees of any nature associated with any such products sold.
III. Material & Products
1. DCS Pacific Star, LLC. (www.dcsmanage.com) will exercise no control whatsoever over the content of the information passing through the network or on the customer's web sites. DCS Pacific Star, LLC. (www.dcsmanage.com) makes no warranties or guarantees of any kind, whether expressed or implied for the service it is providing. DCS Pacific Star, LLC. (www.dcsmanage.com) also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the customer, including loss of data resulting from delays, non-deliveries or service interruptions or gaps by any cause or errors or omissions of the customer. DCS Pacific Star, LLC. (www.dcsmanage.com) is not responsible for any loss, erasure, or corruption of customer's data or files whatsoever. Use of any information obtained by way of DCS Pacific Star, LLC. (www.dcsmanage.com) is at the customer's own risk, and the company specifically denies any responsibility for the accuracy or quality of information obtained through its services. Network connectivity represents the speed of connection to our network and does not represent guarantees of available end to end bandwidth.
DCS Pacific Star, LLC. (www.dcsmanage.com) expressly limits its damages to the customer for any non-accessibility time or other down time to the pro-rate monthly charge during the system unavailability. DCS Pacific Star, LLC. (www.dcsmanage.com) specifically denies any responsibilities for any damages arising from a consequence of such unavailability. In the event that this material is not "server-ready", DCS Pacific Star, LLC. (www.dcsmanage.com) may, at its option and at any time, reject this material, including but not limited to after it has been put on our servers. DCS Pacific Star, LLC. (www.dcsmanage.com) agrees to notify customer immediately of our refusal of the material and afford customer the opportunity to amend or modify the material to satisfy the needs and/or requirements of the company. If the customer fails to modify the material, as directed by DCS Pacific Star, LLC. (www.dcsmanage.com), within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be terminated.
IV. Uptime Guarantee
DCS Pacific Star, LLC. (www.dcsmanage.com) guarantees that our network will be available 99.9% (no more than 45 minutes) of the time in a given month excluding scheduled maintenance. In the event that our network is inaccessible for more than one hour during any thirty (30) days period, each customer will automatically be granted an additional 100GB of data transfer free of charge for the following month as compensation for the aforementioned downtime. Network uptime includes functioning of all network infrastructure including routers, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and DCS Pacific Star, LLC. (www.dcsmanage.com) records such failure in the DCS Pacific Star, LLC. (www.dcsmanage.com) trouble ticket system. Network downtime is measured from the time the trouble ticket is opened by a customer to the time the server is once again able to transmit and receive data.
V. Warranties & Representations
Customer warrants, represents, and covenants to DCS Pacific Star, LLC. (www.dcsmanage.com) that (a) you are at least eighteen (18) years of age; (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 authorizations 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 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.
VI. Trademarks & Copyrights
This Agreement may be terminated by DCS Pacific Star, LLC. (www.dcsmanage.com), without cause and without notice to the other party, in the event that DCS Pacific Star, LLC. (www.dcsmanage.com) believes, in its sole discretion, that continuing to provide service to such party would be harmful to the business or reputation of DCS Pacific Star, LLC. (www.dcsmanage.com). In such event, DCS Pacific Star, LLC. (www.dcsmanage.com) will have no liability to the other party. Furthermore, DCS Pacific Star, LLC. (www.dcsmanage.com) may terminate the service under this Agreement at any time, without penalty, if the customer fails to comply with the terms of this Agreement. It is the customer's responsibility to point your domain to another service provider upon termination, cancellation or discontinuation of service.
VIII. Limited Liability
1. Customer expressly agrees that use of DCS Pacific Star, LLC. (www.dcsmanage.com) Servers is at customer's sole risk. Neither the company, its employees, agents, resellers, third party information providers, merchants licensers or the like, warrant that www.dcsmanage.com service will not be interrupted or be error free; nor do they make any warranty as to the results that might be obtained from the use of the Server service or as to the accuracy, or reliability of any information service or merchandise contained in or provided through our network, unless otherwise expressly stated in this Agreement. Customer also acknowledge and accept that any damages will be limited to no more than 100% of the previous month's invoice.
2. Under no circumstances, including negligence, shall DCS Pacific Star, LLC. (www.dcsmanage.com), its officers, agents or any one else be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to DCS Pacific Star, LLC. (www.dcsmanage.com) records, programs or services. Customer hereby acknowledges that this paragraph shall apply to all contents on all servers.
Customer agrees that it shall defend, indemnify, save and hold DCS Pacific Star, LLC. (www.dcsmanage.com) harmless from any demands, liabilities, losses, costs and claims, including reasonable attorneys fees, ("Liabilities") asserted against the company, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless DCS Pacific Star, LLC. (www.dcsmanage.com) against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with our servers; (ii) any material supplied by the customer infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which customer sold on DCS Pacific Star, LLC. (www.dcsmanage.com) servers.
X. Partial Invalidity
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. DCS Pacific Star, LLC. (www.dcsmanage.com) and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
The parties shall try to resolve all disputes that might arise out of this agreement in a spirit of cooperation without formal procedures. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Santa Clara County, California. The arbitration will take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's pay. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding.
Each party shall have the right to have the proceedings transcribed. The arbitrators will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction.
Should any legal action permissible under this agreement be taken to enforce the conditions and terms of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable legal fees and expenses incurred at the trial and appellate levels.
Customer acknowledges that by reason of their relationship, both customer and DCS Pacific Star, LLC. (www.dcsmanage.com) may have access to certain products, information and materials relating to the other party's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both DCS Pacific Star, LLC. (www.dcsmanage.com) and customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by either party, as the case may be.
Customer and DCS Pacific Star, LLC. (www.dcsmanage.com) further agree that it will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the customer or DCS Pacific Star, LLC. (www.dcsmanage.com).
Except with respect to service of process as set forth in paragraph, all notices may be sent by e-mail, fax, or express mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.