Terms of Service
This Hosting Agreement (this "Agreement") is between NexusCast and the person (individual or legal person) whose signs NexusCast service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of NexusCast hosting service.
1. Summary
The following is a list of terms that you agree to when signing up. For details information please read the appropriate section.
All cancellations must be made at least 24 hours before the next service renewal period. You may request cancelation of your service within the client portal at http://www.nexuscast.com/portal/.
We do not allow illegal content.
We do not tolerate abuse to staff.
Failure to pay your bill on time will result in suspension of your account after 10 days.
All debts will be passed onto our appointed collection agents
2. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of NexusCast credit approval requirements, NexusCast agrees to provide the hosting services described in the Order for the fees stated in the Order.
3. Term
The initial service term of the Agreement shall begin on the date that NexusCast generates an e-mail message to Customer announcing the activation of the Customer's account and shall continue for the number of months stated in the Order. Upon expiration of the Initial Term, this Agreement shall automatically renew the same length as the Initial Term unless NexusCast or Customer provides the other with written notice of non-renewal at least ten 24 hours prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
a) Fees
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. NexusCast may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes NexusCast to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise NexusCast will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 10th day following invoice date ( invoice due date ), but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing NexusCast with changes to billing information (such as credit card expiration, change in billing address) At its option, NexusCast may accrue charges to be made to a credit/debit card until such charges exceed $10.00. NexusCast may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay NexusCast reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Bandwidth is counted as the combined total of in and out and is measured from your billing date to billing date. Overage above your quota is charged at $1/10Gb and is payable at your billing date.
b) Fee Increases
NexusCast may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least sixty (60) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
c) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event NexusCast terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for NexusCast breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 24 hour cancellation notice prior to the following renewal term must be given in writing to NexusCast or the Customer will be responsible for full payment of the following term. Cancellation will only be accepted upon customer completing the NexusCast Service Cancellation form at the Client Area of NexusCast web site.
4. Law/AUP
Customer agrees to use the service in compliance with applicable law and NexusCast Acceptable Use Policy in this Agreement. Customer agrees that NexusCast may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of NexusCast notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with NexusCast reasonable investigation of any suspected violation of the AUP. In the event of a dispute between NexusCast and Customer regarding the interpretation of the AUP, NexusCast commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to NexusCast that the information he, she or it has provided and will provide to NexusCast for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to NexusCast that he or she is at least 18 years of age. NexusCast may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless NexusCast, NexusCast affiliates, and each of their respective officers, directors, 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 the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
NexusCast DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW NexusCast DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF NexusCast AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination
a) Suspension of Service
Customer agrees that NexusCast may suspend services to Customer without notice and without liability if: (i) NexusCast reasonably believes that the services are being used in violation of the AUP, (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP, (iii) NexusCast reasonably believes that the suspension of service is necessary to protect its network or its other customers, (iv) as requested by a law enforcement or regulatory agency, (v) Customer is overdue on the payment of any amount due under the Agreement or Customer refuses to pay for services under the Agreement Term or (v) the customer is abusive towards NexusCast or any member of its staff.
b) Termination
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if NexusCast fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by NexusCast prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from NexusCast describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
c) Money Back Policy
NexusCast has a 5 Days Conditional Money Back Policy. If Customer is not satisfied with his/her service within 5 days of purchasing that service, he/she may cancel and will be issued a full refund less any applicable license/control panel fees. The exceptions to this are the following:
1. Customer account is cancelled due to a violation of our TOS/AUP.
2. A refund is requested due to limitations of Customer's technical knowledge that keep him/her from properly operating a VPS or other product or service offered by NexusCast and purchased by Customer.
3. A refund is requested due to infrequent or non-use of Customer's service.
4. A refund is requested due to a technical issue that has not been brought to the attention of NexusCast via one of our approved support channels.
5. Customer installs or operates software that causes instability in the VPS environment and is not supported by NexusCast .
6. Customer has previously been a customer of NexusCast and requested and received a refund under this policy for prior service held with NexusCast .
7. Customer has previously held an account with NexusCast and maintained an active service for more than 5 days with NexusCast .
10. Requests for Customer Information
Customer agrees that NexusCast may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that NexusCast believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by NexusCast notwithstanding any agreement by NexusCast to provide back up services.
Changes to NexusCast Network Upgrades and other changes in NexusCast network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. NexusCast reserves the right to change its network in its commercially reasonable discretion, and NexusCast shall not be liable for any resulting harm to Customer.
12. Notices
Notices to NexusCast under the Agreement shall be given via support tickets in Client Area, and to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its email address by updating My Details at Client Area.
13. Force Majeure
NexusCast shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond NexusCast control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
14. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of Maryland, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
15. Intellectual Property
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its name, trademarks, service marks, trade secrets, inventions, copyrights, materials, data and other intellectual property. Neither party may use or allow access to any unauthorized personnel, the other party's name, trade mark, service marks, trade secrets, inventions, copyrights, materials, data or other intellectual property without the other party's prior written consent. NexusCast shall make no claim of ownership of data transferred to Customer's server space as provided by NexusCast unless the data is believed to be the owned by NexusCast , its vendors, employees, other customers or agents.
16. Miscellaneous
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on NexusCast unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without NexusCast prior written consent. NexusCast approval for assignment is contingent on the assignee meeting NexusCast credit approval criteria. NexusCast may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.