Customers fully acknowledge and agree, without any requirement for further authorization to or from SpectroHost or to or from the Customer, to the entirety of these Terms of Service upon ordering services as follows:
SpectroHost, through itself and/or any of its affiliates, agrees to provide Customer the services (“Service” or “Service(s)”) in accordance with this Agreement. “Service Order” shall collectively refer to any service order(s), authorization form(s) or order form(s) that describes and sets forth the pricing for the Service(s) purchased by Customer. The parties acknowledge that SpectroHost’s obligation to provide the Service(s) is subject to its having obtained all of the requisite licenses and consents related thereto.
The term of the Agreement shall commence on the Effective Service Date and shall continue thereafter until the expiration of the last expiring Service term, unless earlier terminated in accordance with this Agreement (“Agreement Term”). The term for each Service is set forth in the applicable Service Addendum or Service Order. SpectroHost reserves the right to change its rates during any renewal term by notifying Customer at least sixty (60) days in advance of the effective date of such rate change. Service shall automatically renew for successive periods equal to its Service Initial Term unless terminated by either party at least thirty (30) days prior to the then-current date for termination.
3. Billing; Payment.
Billing for each Service shall commence on the Effective Service Date and may be prorated. Customer will be invoiced according to the selected payment plan term for all amounts due and owing to SpectroHost. All payments are due within the terms specified on the Order Form without set-off or demand. All invoices shall be deemed final and binding unless Customer notifies SpectroHost in writing of any alleged discrepancies no later than thirty (14) days from the date of such invoice(s) are initialized. All payments required by this Agreement are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes and other fees and levies, all of which Customer shall be responsible for and will pay in full, other than taxes based on SpectroHost net income.
Customer agrees by reading and accepting these Terms of Services that the payment plan term is in effect a contract for services for such time period and full payment for such time are due on the due date prior to the plans start or continuance of services. Cancellation of services will only be granted refunds by written request from the customer and will only be granted within the terms of Cancellation and Refunds which is only within the initial 90 days of service for web hosting plans or the initial 30 days of service for VPS plans. In the event SpectroHost is unable to deliver the Service(s) due to any reason, issue or delay caused either directly or indirectly by the Customer or its agents, such Service(s) shall be deemed delivered and SpectroHost shall commence billing when the order for Service(s) is placed or fullfilled. VPS and Web Hosting Plans will be suspended after 5 days of payment overdue and will be terminated (all data removed) within 5 days of payment overdue unless payment is made. Dedicated Servers will be suspended after 1 day of payment overdue and will be terminated (all data removed) within 3 days of payment overdue unless payment is made.
It is the responsibility of the client to pay invoices regardless of whether or not an invoice or reminder was received via electronic mail. SpectroHost will attempt automatic payment processing 2 days prior to due date for any outstanding invoices (for active and uncancelled services) without any further authorization or intervention from the Customer. Customer will be deemed to be in default here-under if payment is not received within the terms specified on the Order Form (for active and uncancelled services) and, in addition to its other remedies, SpectroHost may charge Customer interest equal to 5% per month on any amount past due.
4. Cancellation; Refunds.
Cancellations must be submitted in the client portal via the request cancellation link. All cancellations must be (7) Days prior to service renewal date. Requests for refunds for payments on VPS (Virtual Private Servers) are governed at the sole discretion of SpectroHost staff. Dedicated Servers do not qualify for any refund. All order payments are final and treated as such.
5. Payment Disputes.
Client agrees that invoices must be disputed before the invoice due date. Invoices not paid on their respective due dates may result in service suspension or service termination of service. As a result, SpectroHost, is not liable for any service interruption that occurs as a result of any invoice disputed on or after the invoice due date. In the event that an invoice dispute is initated before an invoice due date and the dispute is still not resolved by the invoice due date, the remaining undisputed items on the invoice should still be paid on or before the invoice due date.
Client agrees that disputing a payment made to SpectroHost, by means of initiating a credit card chargeback, PayPal reversal, reversal request through Google Checkout, or using any other third party resource to reverse a payment will result in full and immediate account termination.
6. Compliance with Laws and Acceptable Use.
A. SpectroHost’s network and Service(s) may only be used in accordance with the Agreement. Customer and its customers and end-users will comply at all times with all applicable laws and regulations, SpectroHost’s operating procedures, and SpectroHost’s Acceptable Use Policy located on its website at https://www.spectrohost.com/aup (“AUP”). SpectroHost reserves the right to monitor Customer’s activity for internal network utilization and reliability purposes. SpectroHost’S utilization and reliability monitoring does not include examination of Customer data unless (i) such examination is deemed necessary to troubleshoot a Customer issue, and the Customer consents to such examination; or (ii) such examination is pursuant to any judicial order, search warrant, or statutory requirement, in which event SpectroHost shall provide notice thereof to Customer, to the extent that the judicial order, search warrant, or statutory requirement permits said notice. Any monitoring by SpectroHost is subject to the confidentiality provision set forth in this Agreement. Customer acknowledges that SpectroHost exercises no control whatsoever over the content (any and all content of Customer or Customer’s end users and/or customers, including but not limited to data, text, multimedia images (e.g. graphics, audio and video files), software, applications, or other materials, or any content shared or processed on equipment under the control of SpectroHost on behalf of Customer (collectively “Content”)), and that it is the sole responsibility of Customer to ensure that the information and Content it and its end-users and/or customers transmit, receive, or use complies with the AUP and all applicable laws and regulations.
B. Customer shall not use the Service(s) in a fraudulent manner or in a manner that violates the AUP or any applicable law or regulation, or otherwise exposes SpectroHost to legal liability, whether this use is by Customer or any other entity or person using the Service(s) and whether or not this use is authorized or consented to by Customer (each such circumstance, “Service Misuse”). This includes, but is not limited to, material in violation of a copyright, material legally judged to be threatening or obscene, material protected by trade secret or material that is otherwise deemed to be proprietary or judged by SpectroHost to be inappropriate or improper, such as unsolicited commercial e-mail messages.
C. SpectroHost may suspend or block access to a Service or all Services (each such circumstance, a “Service Suspension”) without notice for any of the following reasons: (a) to comply with any law, regulation, court order, or other governmental request or order requiring immediate action; (b) to prevent interference with, damage to, or degradation of SpectroHost’S network; (c) to eliminate a hazardous condition; or (d) Service Misuse. Customer shall not be relieved of its payment obligations hereunder during any period of Service Suspension.
D. Notwithstanding Section 4(C) above, SpectroHost reserves the right to immediately terminate the Services or Agreement in the event that SpectroHost becomes aware that Customer, or other persons making use of Customer’s Services are in breach of this Section.
7. DISCLAIMERS OF WARRANTY.
A. THE SERVICE(S) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND SpectroHost MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICE(S), SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THROUGH USE OF THE SERVICE(S), SOFTWARE OR EQUIPMENT. SpectroHost DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTIBILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. USE OF ANY INFORMATION OBTAINED THROUGH THE USE OF SpectroHost’S NETWORK IS AT CUSTOMER’S OWN RISK. SpectroHost SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICE(S).
B. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE, INTERRUPTION OR DEFICIENCY OF SERVICE(S) OR FAILURE BY SpectroHost TO MEET THE TERMS OF AN APPLICABLE SLA, SHALL BE THE REMEDIES PROVIDED IN THE SLA; PROVIDED THAT ANY REMEDIES OR CREDITS CONTAINED IN THE SLA ARE NOT AVAILABLE FOR OUTAGES, INTERRUPTIONS OR DEFICIENCIES OCCURRING DURING ANY PERIOD IN WHICH CUSTOMER’S ACCOUNT HAS A PAST DUE BALANCE OR THE CUSTOMER IS OTHERWISE IN BREACH OF THE AGREEMENT. SpectroHost, ITS SERVICE PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER LIABILITIES OR REMEDIES FOR SUCH OUTAGES, INTERRUPTIONS OR DEFICIENCIES OF SERVICE.
C. SpectroHost DOES NOT AND CANNOT CONTROL THE PERFORMANCE OF ANY DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY THIRD PARTIES. AT TIMES ACTION OR INACTION BY THIRD PARTIES CAN IMPAIR OR DISRUPT SpectroHost’S SERVICE(S). SpectroHost MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY ANY THIRD PARTY, INCLUDING THE PROVIDERS OF TELECOMMUNICATIONS OR NETWORK PRODUCTS OR SERVICES. SUCH DATA, PRODUCTS, AND SERVICES ARE NOT PROMISED TO BE FREE OF ERROR OR INTERRUPTION, AND SpectroHost, ITS SERVICE PROVIDERS AND SUPPLIERS EXPRESSLY DISCLAIMS ALL LIABILITIES ARISING FROM ANY SUCH ERROR, INTERRUPTION, OR OTHER FAILURE. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SpectroHost, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SpectroHost, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN AN APPLICABLE SLA.
A. Termination by SpectroHost. SpectroHost may terminate this Agreement immediately on a default by Customer. Default includes (a) the failure by Customer to (i) pay any amounts when due; (ii) comply with Section 4 Compliance with Laws and Acceptable Use; or (iii) perform any material obligation under this Agreement which failure is not remedied within thirty (30) days after receipt of written notice from SpectroHost (unless a shorter notice period is expressly set forth in the Agreement, in which case the shorter notice period shall apply); or (b) Insolvency (as hereinafter defined). If SpectroHost terminates this Agreement for any of the aforementioned reasons, all of the following shall be immediately due and payable by Customer: (a) the cumulative total of the balance of all monthly charges remaining on this Agreement through the end of the applicable Service Term(s); and (b) any charges accrued but unpaid as of the effective date of termination. Customer acknowledges that the amounts payable pursuant to the preceding sentence are equitable compensation to SpectroHost and are intended to reasonably compensate SpectroHost for the losses which are occasioned by Customer’s failure to honor Customer’s obligations hereunder. As used herein, “Insolvency” shall refer to any one of the following events: (i) Customer files a voluntary petition in bankruptcy or an involuntary petition is filed against Customer; (ii) Customer is adjudged bankrupt; (iii) a court assumes jurisdiction of the assets of Customer under federal reorganization act; (iv) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of Customer; (v) Customer becomes insolvent or suspends business; or (vi) Customer makes an assignment of its assets for the benefit of its creditors. Termination by SpectroHost shall not preclude SpectroHost from pursuing any other rights or remedies available to it, at law or in equity.
Routine maintenance and periodic system repairs, upgrades, and reconfiguration may result in temporary impairment or interruption in Service(s). As a result, SpectroHost does not guarantee continuous or uninterrupted Service(s) and reserves the right from time to time to temporarily reduce or suspend Service(s) without notice subject to the terms and conditions of the applicable SLA.
Customer shall indemnify, defend and hold SpectroHost, its affiliates, officers, directors, licensees, licensers, and vendors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to (i) Service Misuse or a violation of any other provision of this Agreement; (ii) any claim of infringement of any intellectual property or other proprietary interest based on the possession or use of any Service(s), software or equipment furnished to Customer or Customer’s end-user(s) and/or customer(s); (iii) any claim that Content, or the manner in which Customer or Customer’s customer(s) and/or end user(s) make use of the Service(s), constitutes an infringement of any patent, copyright, trademark, trade secret, or other right of any third party; (iv) any acts or omissions of Customer, its employees, agents, contractors, invitees, licensees, visitors, and/or customer/end-users; and/or (v) any injury or damage to the person, property, or business of SpectroHost, its employees, agents, contractors, invitees, licensees, visitors, and/or customer(s)/end-user(s).
11. Governing Law.
This Agreement shall not become a binding obligation of SpectroHost until it has been executed by an officer of SpectroHost. The parties agree that any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, except for its principals for resolving conflicts of law. The parties agree that any disputes arising under this Agreement shall be resolved in the state or federal courts of the State of Nevada.
Customer may not assign this Agreement or any portion hereof without SpectroHost’S prior written consent, which consent shall not be unreasonably withheld, provided that Customer may assign this Agreement or a portion thereof (i) in the event of a merger in which the party is not the surviving entity; (ii) in the event of a sale of all or substantially all of its assets; or (iii) to any party that controls, is controlled by or is in common control with such party (provided further that in the event of an assignment to any such party by Customer, the assignee must be of equal or better creditworthiness as Customer, as determined by SpectroHost in its sole discretion). Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
13. Limitation on Liability.
A. IN NO EVENT SHALL SpectroHost, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTION HOWEVER CAUSED ARISING FROM OR RELATED TO THE SERVICE(S) OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER SpectroHost HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. THE TOTAL AGGREGATE LIABILITY OF SpectroHost AND ITS SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY SpectroHost FOR THE AFFECTED SERVICE WHICH GIVES RISE TO SUCH LIABILITY IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. The foregoing sets forth Customer’s exclusive remedy for breach of this Agreement by SpectroHost. For certain Service(s), SpectroHost licenses certain software from third parties for use with such Service(s). The liability of such third party suppliers for damages, whether direct, indirect, incidental, special, punitive or consequential arising from use of the software and hardware, shall be disclaimed and limited to the maximum extent permitted by law.
B. Customer acknowledges and agrees that in no event shall SpectroHost be liable for any damages, whether in contract or tort, including, but not limited to, direct, consequential (including without limitation loss of profits), cost of substitute goods, special, exemplary, incidental and indirect damages, arising out of compliance or reasonable attempts to: (i) comply with the United States Copyright Act, or (ii) satisfy requirements to qualify for the safe harbors designated in Section 512 of the Digital Millennium Copyright Act including, but not limited to any actions by SpectroHost that result in a disruption or suspension of the Service(s).
C. The parties acknowledge that the limitations referenced in this section are material terms to this Agreement. Customer acknowledges that SpectroHost has set its prices, and other charges in reliance on the foregoing limitations of liability, which form an essential basis of the bargain between the parties.
14. Confidential Information.
A. Unless required to release by a law or court or government order, in which case the disclosing party will give as much notice as reasonably possible unless such order explicitly restricts such notification, or unless such information is already publicly available, neither party shall disclose any of the terms and conditions of this Agreement nor any non-public information (collectively “Confidential Information”) without the prior written consent of the other party hereto. Notwithstanding the foregoing, each party may disclose Confidential Information to any consultants, contractors, and counsels on a need to know basis and have executed a reasonably protective non-disclosure agreement with the disclosing party.
B. In performing its duties under this Agreement, SpectroHost may receive or have access to, from or through Customer, personal data. SpectroHost shall not disclose or use the personal data for any reason other than as necessary to carry out its duties and responsibilities under this Agreement or as required by law.
C. In the event the receiving party commits a breach of, or threatens to commit a breach of, this Section 12, the disclosing party shall have the right to seek injunctive relief as may be ordered or awarded by a court of competent jurisdiction.
Except for additional Service(s) to be ordered by a Service Order and/or Service Addendum, this Agreement may be modified without notice. It is the customer’s responsibility to stay up to date with the latest Terms of Service agreement posted here on this site.
Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when deposited in the United States mail (registered or certified mail), return receipt requested, with adequate postage affixed, or delivered to a national overnight courier service and addressed to the persons set forth herein. Notice for monetary default may be sent by e-mail, facsimile, or other written format.
TO SpectroHost: SpectroHost. Attention: Legal Notifications 2150 Soldier Pass Ct Reno, NV 89523 email@example.com TO CUSTOMER: To the address listed on the Order Form
17. Force Majeure.
Except for the obligation to make payments for Service(s) rendered, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, acts of government, failure of the Internet, terrorist acts, failure of third party(ies), utility power failure, or failure of communication lines.
In the event any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.
SpectroHost’s failure to insist upon or to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
A. SpectroHost reserves the right to terminate the Agreement or any affected Service Addendum upon notice to Customer in the event that (i) SpectroHost cannot maintain, despite reasonable efforts to do so, its regulatory approval necessary to provide the Service(s) and/or enter into this Agreement; and (ii) SpectroHost’s underlying vendor is unable or unwilling to provide some or all of the Service(s) required for SpectroHost to continue this Agreement.
B. Any cause of action Customer may have with respect to the Service(s) shall be barred unless it is commenced within six (6) months of the earlier of (i) the effective date of expiration or termination of this Agreement; or (ii) the date after the claim or cause of action arises.
C. The following provisions will survive any expiration or termination of this Agreement: Indemnity (Customer’s indemnity of SpectroHost); Ownership of Intellectual Property; Confidential Information; Disclaimers of Warranties; Limitation on Liability; Governing Law; Payment; and Miscellaneous.
21. Third Party Beneficiaries.
The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any third party, including without limitation, Customer’s end users.
In the event of a conflict between or among the terms in this Agreement, the Service Order(s), the Service Addenda, and any other document made a part hereof, the documents shall control in the following order unless otherwise specifically set forth in a Service Addendum: the Service Order with the latest date, the AUP, the Service Addendum, this Agreement.
Customer shall not use, in advertising or publicity or in any way related to this Agreement or the subject matter hereof, the name of SpectroHost, its affiliates or any of its directors, officers, managers, employees, consultants or agents or any trade name, trademark, service mark, logo or symbol of SpectroHost or its affiliates, except with the express prior written consent of SpectroHost. SpectroHost may disclose as part of its promotional activities the fact that Customer is obtaining Service from SpectroHost.
24. Newsletter and Promotional emails
Initial account registration for SpectroHost services will automatically subscribe the customer’s email address in our newsletter and promotional emails. Customer must use the unsubscribe link in the emails to stop newsletters and promotional emails from being sent to customer’s email address on the account.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original for all purposes hereof. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby and supersedes any other prior or simultaneous agreement related to such matters. Service interruptions that are caused by the misconfiguration or mismanagement of the customer (e.g. an incorrect network configuration on the device) are not eligible.