Terms of Service Agreement
This Web
Hosting Agreement (this “Agreement”) is between Tadunka, and the person
(individual or legal person) who signs Tadunka’s service order and set up form
(the “Order”) incorporating this Agreement by reference (“Customer”).
This Agreement governs Customer’s use of Tadunka’s Web hosting service.
1. Services.
Subject to the terms of this Agreement, and contingent on Customer’s
satisfaction of Tadunka’s credit approval requirements, Tadunka agrees to
provide the web hosting services described in the Order for the fees stated in
the Order.
2. Term.
The initial service
term of the Agreement shall begin on the date that Tadunka generates an e-mail
message to Customer announcing the activation of the Customer’s account (the “Service
Commencement Date”) and shall continue for the first partial month of
service plus the number of full calendar months stated in the Order (the “Initial
Term”). Upon expiration of the Initial Term, this Agreement shall
automatically renew for up to three successive renewal terms of having the same
number of full calendar months as the Initial Term (each a “Renewal Term”)
unless Tadunka or Customer provides the other with written notice of non-renewal
at least thirty (30) days 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.”
3. Payments.
(a) Fees.
Fees are payable in
advance on the first day of each billing cycle. Customer’s billing cycle shall
be a calendar month or twelve calendar months, as indicated on the Order. The
first service fee shall include a prorated portion of the monthly fee for the
first partial month of service and may include the fee for the first full
billing cycle. Tadunka may require payment in full of the first fee before
beginning service. If the Order provides for credit/debit card billing,
Customer authorizes Tadunka to bill subsequent fees to the credit/debit card on
or after the first day of each billing cycle during the Term of this Agreement;
otherwise Tadunka 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
14th day following invoice 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 Tadunka with
changes to billing information (such as credit card expiration, change in
billing address). At its option, Tadunka may accrue charges to be made to a
credit/debit card until such charges exceed $10.00. Tadunka may charge interest
on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious
rate under applicable law. Tadunka 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 Tadunka’s
reasonable reinstatement fee following a suspension of service for non-payment,
and to pay Tadunka’s reasonable costs of collection of overdue amounts,
including collection agency fees, attorney fees and court costs.
(b)
Fee Increases. Tadunka 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 forty five (45) 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)
Taxes. At Tadunka’s request Customer shall remit to Tadunka all sales, VAT
or similar tax imposed on the provision of the services (but not in the nature
of an income tax on Tadunka), regardless of whether Tadunka fails to collect the
tax at the time the related services are provided.
(d) 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 Tadunka 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 Tadunka’s 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.
4. Law/AUP.
Customer agrees to use the service in compliance with applicable law and
Tadunka’s Acceptable Use Policy posted at http://www.Tadunka/acceptableuse.php
(the “AUP”), which is hereby incorporated by reference in this
Agreement. Customer agrees that Tadunka 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
Tadunka’s 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 Tadunka’s reasonable investigation of any suspected violation of
the AUP. In the event of a dispute between Tadunka and Customer regarding the
interpretation of the AUP, Tadunka’s commercially reasonable interpretation of
the AUP shall govern.
5. Customer
Information. Customer
represents and warrants to Tadunka that the information he, she or it has
provided and will provide to Tadunka for purposes of establishing and
maintaining the service is accurate. If Customer is an individual, Customer
represents and warrants to Tadunka that he or she is at least 18 years of age.
Tadunka 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.
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Indemnification.
Customer agrees to indemnify and hold harmless Tadunka, Tadunka’s 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.
Tadunka DOES NOT WARRANT OR REPRESENT
THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO
THE EXTENT PERMITTED BY APPLICABLE LAW Tadunka DISCLAIMS ANY AND ALL WARRANTIES
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. 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
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE
AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Tadunka 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 Tadunka may suspend services to Customer without notice and without
liability if: (i) Tadunka 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)
Tadunka reasonably believes that the suspension of service is necessary to
protect its network or its other customers, or (iv) as requested by a law
enforcement or regulatory agency. Customer shall pay Tadunka’s reasonable
reinstatement fee if service is reinstituted following a suspension of service
under this subsection.
(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 Tadunka 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 Tadunka 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 Tadunka 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.
10. Requests for Customer
Information. Customer agrees that Tadunka 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 Tadunka
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 Tadunka notwithstanding any agreement by Tadunka to provide
back up services.
12. Changes to Tadunka’s
Network. Upgrades and other changes in
Tadunka’s 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. Tadunka reserves the right to
change its network in its commercially reasonable discretion, and Tadunka shall
not be liable for any resulting harm to Customer.
13. Notices.
Notices to Tadunka under the Agreement shall be given via
electronic mail to the e-mail address posted for customer support. Notices 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 notice address
by a notice given in accordance with this Section.
14. Force Majeure.
Tadunka shall not be in default of any obligation under the Agreement if the
failure to perform the obligation is due to any event beyond Tadunka’s 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.
15. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of New Jersey,
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. EXCLUSIVE VENUE FOR ALL
DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND
FEDERAL COURTS IN ATLANTIC COUNTY, NEW JERSEY, AND EACH PARTY AGREES NOT TO
DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. Miscellaneous.
Each party acknowledges and agrees that the
other party retains exclusive ownership and rights in its trademarks, service
marks, trade secrets, inventions, copyrights, and other intellectual property.
Neither party may use the other party’s name or trade mark without the other
party’s prior written consent. 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 Tadunka 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 Tadunka’s prior written consent.
Tadunka’s approval for assignment is contingent on the assignee meeting
Tadunka’s credit approval criteria. Tadunka may assign the Agreement in whole
or in part.
17. Support:
Tadunka provides full email support to all Tadunka clients who host their web
sites on the Tadunka web servers. Phone support is available when pre-arranged
by both a staff member, and the client. The phone number listed on the web site
serves primarily as a means for Pre-Sales questions, but may be used to seek
emergency assistances, should the need arise. An example of emergency assistance
would be, if the web server is entirely down and inaccessible.
Tadunka will NOT provide web store support for any clients that are not hosted
on the Tadunka web server. The reason for this is because it is nearly
impossible to fully diagnose and correct problems that may arise with the
operation of the web store without "Server-Level Access". Tadunka does not have
"Server-Level Access" to any web servers, other than that of which they own,
operate, and host client's on. Therefore, should a client decide to move their
web store to another web host, they will waive their right to support by the
Tadunka staff.
18. Refund Policy
We have instituted a strict refund policy that customers must accept prior to
making payment for any of our services. Under no circumstances, and without
exception, will a refund of any prepaid services be issued.
1. Electronic Nature of the Products and Services:
(a) Understanding
This policy exists due to the
electronic nature of the services that we provide. The electronic nature of the
product allows it to be copied and potentially resold, very similar to that of a
Compact Disc (CD) or Digital Video Disc (DVD).
(b) Reselling Note: Reselling our products or services without
the properly issued Reseller's License, is illegal. The customer is not entitled
to resell any portion of the products or services provided by Tadunka, without
the express written permission by Tadunka.
2. Customer's Acknowledgement of Responsibility:
In purchasing any products or services from Tadunka, the customer acknowledges a
complete understanding of the products and services being provided. It is the
customer's responsibility to research the products and services being provided,
and in no situation will the customer request a refund due to a lack of
understanding, or lack of research prior to the purchase.
3. Customer's Acknowledgement of Acceptance:
During the payment process, the customer must read and acknowledge having read
our refund policy by placing a checkmark in the box beside the statement: "I
have read and fully understand the Refund Policy of Tadunka." Failure to check
the box will result in the inability to fully complete the checkout process. It
is understood that in checking the box, the customer accepts the Refund Policy
entirely and without question.
4. Refunds based on Early Termination:
By submitting payment, for any of our products or services including but not
limited to Web Hosting or Web Design, the customer acknowledges an understanding
that in no situation will any refund of any fee previously paid, be refunded;
either (a) in the event that the Services are terminated by the Provider (for
violation of Terms of Services); or (b) in the event that the Customer
terminates the Services prior to completion of the Services term.
4. Refunds based on Service Outage or Downtime:
Tadunka strives to offer 99% uptime for it's web hosting services. However, NO
GUARANTEE, neither written or implied, is provided for the actual uptime or
downtime the customer may experience. Tadunka will not issue a partial or full
refund, should the customer's store experience any downtime, regardless of fault
or cause.
6. Chargeback:
In the event that the customer places a chargeback against any funds previously
paid to Tadunka, Tadunka will, at it's sole discretion, take appropriate actions
against the customer to reclaim lost funds. This includes the use of an attorney
or a collection agency. The customer acknowledges that in the event that they
place a chargeback against Tadunka, Tadunka will provide the customer's
personally identifiable information to an attorney or collection agency in an
attempt to reclaim the lost funds, as well as any and all legal costs.
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.
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