Terms of Service
Mosso ("Mosso" or "our"), a division of Rackspace US, Inc. provides a platform for internet web hosting services to its subscribers (the "Subscribers" or "you" or "your") and their end users ("EUs"). Additionally, Mosso may provide services involving registration, transfer or renewal of domain name and EU billing and customer support services at your option. Your use of all of the services is governed by this Terms of Service (the "Terms of Service") and our Acceptable Use Policy ("AUP") found at http://www.mosso.com/legal.
1. Services/Reselling Services. Subject to your satisfaction of our credit approval requirements, Mosso agrees to provide the services you ordered (the "Services") by completing and submitting our online Services order form (the "Order Form"). You acknowledge that in the event you resell certain of the Services to EUs, you agree to be responsible for their activities and content and to require EUs to comply with our AUP or one that is at least as restrictive as ours.
2. Domain Name Services. If your Order Form provides for Mosso to register, renew or transfer a domain name ("Domain Name Services"), Mosso will submit the request to Tucows.com Co (the "Registrar") on your behalf. Our sole responsibility is to submit the request to the Registrar. Mosso is not responsible for any errors, omissions or failures of the Registrar. By ordering Domain Name Services, you are agreeing to the terms posted at http://www.mosso.com/legal. You are responsible for closing any account with any prior reseller of Registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
3. Term. The initial term of each of your Services shall begin on the date (the "Services Commencement Date") that Mosso generates an e-mail welcome message announcing the activation of the Service you ordered and shall continue for the number of months stated in the Order Form (the "Initial Term") for each such Service. Upon expiration of the Initial Term, this Terms of Service shall automatically renew for successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless you or Mosso provides written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as the case may be. The Initial Term and any Renewal Term may be referred to collectively herein as the "Term."
4. Fees
(a) Recurring Fees. The fee for the Services specified in your Order Form(s) is the "Recurring Fee." Beginning on the Services Commencement Date, unless otherwise specified on your Order Form, you agree to pay the Recurring Fee in advance on the first day of each billing cycle (the "Due Date"), without invoice. The billing cycle for Recurring Fees is specified in the Order Form. For any Billing Services (as defined below), the Recurring Fee may include a charge based on a percentage of amounts charged to an EU on your behalf. Such percentage shall be as specified on the Order Form and will be in addition to any other fees.
(b) Non-Recurring Fees. If Mosso performs Domain Services, you will be charged a "Domain Registration Fee" as specified on the Order Form. If you use bandwidth or disk space in excess of that provided in your Order Form, you agree to pay a fee ("Overage Fee") for such excess amounts. Mosso may charge set-up fees ("Set Up Fee") for certain of the Services; a fee for credit card charge backs ("Charge Back Fee"); and other non-recurring fees relating to the Services. Domain Registration Fees, Overage Fees, Set Up Fees, Charge Back Fees, Reinstatement Fee (as defined below) and all other non-recurring fees relating to the Services are collectively referred to as "Non-Recurring Fees." You agree to pay Non-Recurring Fees when they are incurred.
(c) Fee Increases. Recurring Fees and Non-Recurring Fees are collectively referred to as the "Fees" or individually as "Fee." Mosso may increase any or all of the Fees by giving notice to you not less than forty-five (45) days prior to the beginning of a Renewal Term applicable to the particular Fee which is subject to increase. Such Fee increase shall be effective on the first day of the applicable Renewal Term. Unless you give notice to Mosso of your intent not to renew the Services as provided in Section 3, you are deemed to have accepted the increased Fee for the applicable Renewal Term and any subsequent Renewal Terms (unless the Fees are increased in the same manner for a subsequent Renewal Term).
5. Payment of Fees. Payment of the Fees shall be made to Mosso by credit or debit card (the "Card") in United States dollars. You authorize Mosso, or an agent of Mosso, to charge Fees to the Card during the Term. Mosso may charge the Card for (i) Recurring Fees five (5) days prior to or after the Due Date and (ii) Non-Recurring Fees as incurred by you. At its option, Mosso may abstain from charging the Card until the next Due Date or until the Fees exceed $50.00. Fees paid are nonrefundable. Fees charged but not disputed within sixty (60) days after the date that they are charged are conclusively deemed accurate. You are required to provide Mosso with changes to billing information, such as credit card expiration and change in billing address. Unpaid Fees shall accrue interest at the lesser of the highest rate allowed by applicable law and 1.5% per month. You agree to pay our reasonable costs of collection of overdue amounts, including collection agency fees, attorneys' fees and court costs.
6. Taxes. You agree to pay to Mosso all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on Mosso), regardless of whether Mosso fails to collect the tax at the time the Services are provided.
7. Law/AUP. You agree to use the Services in compliance with applicable law and our AUP, which is incorporated by reference in the Terms of Service. You agree that Mosso 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 your use of the Services. Amendments to the AUP are effective on the earlier of our notice to you that an amendment has been made, or the first day of the next Renewal Term. You agree to cooperate with our reasonable investigation of any suspected violation of the AUP. In the event of a dispute between the parties regarding interpretation of the AUP, our commercially reasonable interpretation of the AUP shall prevail.
8. Your Information. You represent and warrant to Mosso that (i) all information you provide to Mosso for purposes of establishing and maintaining the Services is accurate; (ii) if you are an individual, you are at least eighteen years of age; (iii) you will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles in any country listed in Country Groups D:4 and D:3 of Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (iv) you will not provide access to the Services to any person (including a natural person or government or private entity) located in or a national of embargoed or highly restricted country under United States Export Regulations, which include as of June, 2008, Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria. You agree that Mosso may, without notice and without liability to you report to the appropriate governmental authorities any conduct by you or any of your EUs that Mosso reasonably believes violates applicable law, and provide any information that it has about you and your EUs in response to a formal or informal request from a law enforcement or government agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
9. Indemnification. You agree to indemnify and hold harmless Mosso, its affiliates, and each of their respective officers, directors, agents, partners, shareholders and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements ("Claims") 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 Services, including without limitation Claims related to Web space content that violates any copyright, trademark or service mark; any proprietary right of any person or entity; and any state and/or federal laws or regulations, including US Export Regulations.
10. Disclaimer of Warranties.
MOSSO MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES. SPECIFICALLY MOSSO DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW MOSSO DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
11. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR 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 TERMS OF SERVICE, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OF SERVICE, THE MAXIMUM AGGREGATE LIABILITY OF MOSSO, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, PARTNERS, SHAREHOLDERS AND EMPLOYEES, UNDER ANY THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICES FOR THE THREE MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.
12. Suspension/Termination.
(a) Suspension of Services. You agree that Mosso may suspend the Services if: (i) Mosso reasonably believes that the Services are being used in violation of the AUP; (ii) you fail to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Mosso reasonably believes that suspension of the Services is necessary to protect its network or its other customers, (iv) as required by a law enforcement or government agency, or (v) if the Card cannot be charged for payment in accordance with Section 5. You agree to pay a reasonable fee for reinstatement ("Reinstatement Fee") following any suspension.
(b) Termination by You. The Terms of Service may be terminated by you at any time as long as all Fees then due together with unpaid Recurring Fees for the remainder of the Initial Term or the Renewal Term, as the case may be, are fully paid on the business day following the termination date.
(c) Termination by Mosso. The Terms of Service may be terminated by Mosso prior to the expiration of the Initial Term or any Renewal Term without liability as follows: (i) upon seventy-two (72) hours notice if you are overdue on the payment of any Fee; (ii) you materially violate any provision of the Terms of Service or the AUP, and fail to cure the violation within ten (10) days after receipt of a written notice from Mosso describing the violation in reasonable detail in our sole discretion; (iii) upon twenty-four (24) hours notice if the Services are used in violation of a material term of the AUP more than once, or (iv) upon twenty-four (24) hours notice if you violate Section 8 (Your Information).
13. Intellectual Property Use and Ownership. Neither party shall (i) use the other party's name, trademarks, trade names or logos in either its own legal name or in any fictitious or assumed name without the party's consent; (ii) knowingly remove or alter any logo, trademark, trade name, copyright, or other proprietary notice, legend, or symbol from any of the other party's products or documentation; or (iii) take any action, or intentionally omit to take any action that would jeopardize, limit, or interfere in any manner with the ownership of the other party's products, services, documentation, or intellectual property. Title to and ownership of all copies of any products, services, software, documentation, or Internet services developed by or for Mosso during the Term, whether in machine-readable or printed form, and including without limitation any derivative works, compilations, or collective works thereof, and all related technical know-how, and all rights therein (including without limitation rights in patents, copyrights and trade secrets applicable thereto), are and shall remain the exclusive property of Mosso and its suppliers. You shall not take any action to jeopardize, limit, or interfere in any manner with our ownership and rights therein.
14. Confidential Information. Each party agrees not to disclose or use, and to assure that their employees and agents do not disclose or use any confidential information ("Confidential Information") of the other party. Mosso Confidential Information is its unpublished prices for the Services, audit and security reports, server configuration designs, software interfaces and other proprietary technology. Your Confidential Information is content transmitted to or from, or stored by you on servers in our possession and not placed by you in a publicly accessible area. Confidential Information is also information of a party that is conspicuously marked as 'confidential' or if disclosed in non-tangible form, is verbally designated as 'confidential' at the time of disclosure and is confirmed as confidential in a written notice given within one (1) day of disclosure. Confidential Information does not include (i) any information which is independently developed by a non-disclosing party as shown by such party's written business records, (ii) is or becomes generally available to the non-disclosing party or the public other than through violation of this Section, or (iii) is required to be disclosed by law or regulation. The parties acknowledge that Confidential Information is valuable, special and unique; that its unauthorized disclosure or use will cause irreparable injury to its owner, that immediate injunctive and/or other equitable relief will be necessary and appropriate to remedy an unauthorized disclosure or use of Confidential Information, and that such relief may include without limitation a temporary restraining order obtained ex parte as well as permanent injunctive relief. Upon termination of the Terms of Service, each party agrees to return within a reasonable period of time any and all Confidential Information and other materials belonging to the other party upon request. This Section 14 will survive the termination of the Terms of Service for a period of two (2) years.
15. Back Up Copy. You agree to maintain a current copy of all of your content hosted by Mosso.
16. Notices. Notices to Mosso shall be given by means of electronic mail to the e-mail address posted for customer support on http://www.mosso.com/legal Notices to you shall be given via electronic mail to the individual designated as the Primary Contact. 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 transmitted.
17. Force Majeure. Mosso shall not be in default under the Terms of Service if the failure to perform is due to any event beyond our control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, failure of network providers, 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.
18. Governing Law/Venue. The Terms of Service shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The United Nations Convention on the International Sale of Goods shall have no application to the Terms of Service. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE SHALL BE THE STATE AND FEDERAL COURTS IN BEXAR COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
19. Billing Services. If you selected billing services (the "Billing Services") on your Order Form, the following terms and conditions apply:
(i) The Billing Services comprise Mosso's billing of some or all of your EUs via the EUs' credit card for recurring hosting and related charges ("Charges"), and remitting to you the proceeds collected from such billings.
(ii) Mosso will bill your EUs under the name "Web Hosting Billing Systems."
(iii) You are responsible for providing all required information to enable Mosso to bill the EUs including the amount to be charged and obtaining authorization from each EU ("EU Authorization") specifically authorizing and directing Mosso doing business as Web Hosting Billing Systems to charge EUs' credit cards as the agent of Subscriber for all Charges payable to you pursuant to the agreement between you and the EU ("End User Agreement").
(iv) You are responsible for the accuracy and completeness of the EUs' credit card information. Mosso will not bill an EU until it has complete, consistent and verifiable credit card and related information, and the EU has passed our credit card acceptance criteria.
(v) You will provide Mosso with such billing information as it requires 3 business days prior to the desired initial billing date. You are responsible for the accuracy and completeness of the Charges and applicable taxes.
(vi) You are liable for any amounts which are fraudulently or erroneously charged by you to the End User. You hereby warrant and represent to Mosso that all Charges are bona fide and in accordance with the End User Agreement and that the EU Authorization is valid.
(vii) Mosso will remit proceeds via electronic funds transfer, check or such other method it may choose in its sole discretion to you on a monthly basis net of any charge backs, refunds, etc. initiated by any EU or its credit card company. ("EU Credits") In the event that any EU Credits exceed amounts collected, Mosso may, in its sole discretion, charge your Card for the difference.
(viii) Mosso may hold the proceeds received from credit card charges until it is assured, in its sole discretion, that the proceeds are not subject to any EU Credit. Generally, this means that the proceeds from the initial charge of a credit card will be held for 60 days, and subsequent charges will be held for 30 days. If total collected proceeds are less than $50.00, Mosso may hold the proceeds for inclusion with the following month's remittance to you.
(ix) Mosso will provide support to you and your EU on EU billing issues. Such support shall include answering billing questions, processing refunds and service credits, and updating credit card information.
(x) You may instruct Mosso to suspend EUs for non-payment according to the process set out in the Control Panel.
(xi) You are responsible for (a) specifying tax rates that apply to Charges provided to Mosso, (b) tracking taxes collected and (c) reporting and remitting all collected taxes to the appropriate taxing authorities.
(xii) Mosso will attempt to charge the EUs' credit cards one time according to the collections process outlined in the Control Panel for the amount of the Charges. In the event the Charges are disallowed, canceled, charged back or otherwise nullified, Mosso will notify you. Any further collection efforts are your responsibility.
(xiii) For the term of the Agreement, the Subscriber hereby appoints Mosso to be its true and lawful attorney-in-fact for the following purposes: (a) to bill EUs in accordance with the Billing Services and according to the billing information provided by you; (b) to charge EUs credit cards for the Charges and (c) to receive the proceeds from EUs' credit cards.
20. 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. Neither party has the power or authority to bind the other in any agreement and will not represent to any person that it has such power or authority. The Terms of Service may be amended from time to time by Mosso, in its discretion. Amendments to the Terms of Service are effective on the earlier of our notice to you that an amendment has been made, or the first day of the next Renewal Term. Terms of Service as amended are posted at http://www.mosso.com/legal. The terms on any purchase order or other business forms issued by you are not binding on Mosso. A party's failure or delay in enforcing any provision of the Terms of Service will not be deemed a waiver of that party's rights with respect to that provision or any other provision. A party's waiver of any of its rights under the Terms of Service is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether or not similar in nature. Captions in the Terms of Services are for the convenience of the parties and are not intended for interpretation. The following provisions will survive expiration or termination of the Terms of Service: 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. There are no third party beneficiaries to the Terms of Service. You may not transfer the Terms of Service without our prior written consent. Our approval for any assignment is contingent on the assignee meeting our credit approval criteria. Mosso may assign the Terms of Service.
This Terms of Service together with the Order Form and AUP (i) constitute a legal and binding agreement between you and Mosso; (ii) are the complete and exclusive agreement between the parties regarding the subject matter; (iii) supersede and replace any prior understanding or communication, whether written or oral, and (iv) do not benefit any other person or entity, including without limitation any EUs.
