YottaServers Terms Of Service
This Terms of Service (“TOS”) and the Acceptable Use Policy (“AUP”) of YottaServers, LLC., an Iowa Limited Liability Company, govern the purchase and use of Services, Servers, other Devices and IP Addresses of YottaServers (collectively “Services” or “Servers”), as described in the Service Schedule or other Order Form (“Service Schedule”) accepted by you (“You”, ”Customer”, or “User” as identified in the Service Schedule) and YottaServers. Acceptance of any terms or conditions different from those contained herein by YottaServers will not be granted by provision of service, but only by electronic or written signature of an manager of YottaServers. You must register and accept this TOS and the AUP in order to use the Services and/or Servers. YottaServers may modify any of the terms and conditions contained in this TOS and the AUP at any time, at its sole discretion. Any modifications are effective upon posting of the revisions on the YottaServers web site. Your continued use of the Services and/or Servers following YottaServers posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify YottaServers of your termination of this TOS in the manner described in the section below. YottaServers will notify you via the YottaServers alerts blog if any modifications have been posted to the Site.
By clicking on the “I accept” button below, and/or registering for and using the services, you acknowledge that you have read this TOS and the AUP, and agree to be bound by all terms and conditions of this TOS as well as all policies and guidelines of the AUP, which are incorporated herein.
Terms and Conditions
The initial term of this TOS will be set forth in the Service Schedule, or if no term is specified in the Service Schedule, the initial term will be for one month (“Initial Term”) and will begin on the date the Services are first provided by YottaServers (the day of the month referred to as “Renewal Date”). This Agreement will be automatically renewed (the “Renewal Term”) at the end of the Initial Term or any Renewal Term (referred to collectively in this TOS as the “Term”) for a like Term unless you provide YottaServers with written notice of termination at least two days before the end of the Term. To provide your notice of termination, you must submit a cancellation ticket to the Billing department via ticketing system and fill out the corresponding cancellation form to initiate the cancellation of your service. All service cancellations require double confirmation by the customer to ensure appropriate cancellation of services.
Services, Charges and Invoicing
You will receive an electronic invoice from YottaServers that will include all charges for your use of the Services and/or Servers at the pricing agreed to in the written Service Schedule signed by you and YottaServers, and any other non-recurring charges at the then current rate (“Charges”). Nothing in any Service Schedule, including. but not limited to, permission to use space within a facility (i.e. colocation), will constitute or should be construed as a lease or grant of any other interest in real property to you. Provided that you are not in default under any Service Schedule or this TOS, you may request additional Services and/or Servers at YottaServers’ current rates which are provided at the sole discretion of Yottaservers.
All Charges are exclusive of taxes and other fees. You are responsible for paying all federal, state, and local sales, use, value added, excise duty and any other taxes or fees assessed with respect to the Charges, other than taxes based on YottaServers’ net income.
Your Service comes with a set bandwidth allotment defined in your Service Schedule. This represents the amount of bandwidth for each calendar month. If you exceed this allotment for any reason in any calendar month, even if you have cancelled service with YottaServers during that month, you will be charged overage bandwidth at a rate of $.50 per gigabyte. If any bandwidth overage has occurred at the end of a calendar month the overage charge will be added to your next bill. It is your responsibility to monitor your bandwidth usage and to pay for all overages. If you are a reseller, it is your responsibility to monitor the bandwidth usage of your client as you are solely responsible for any and all overages incurred by them. On your renewal date your bandwidth allotment is reset to zero and any unused bandwidth is not carried over.
Any paid backup service comes with a set data storage allotment. This represents the total amount of storage capacity allotted for each calendar month. If the allotment amount is exceeded, YottaServers will contact you via the ticketing system to notify you of the overage. To have your storage allocation increased, no action is required. YottaServers will automatically increase your allotted backup storage 72-hours after our initial notification to accommodate your increased storage needs. The increase will provide up to an additional 10GB of storage capacity beyond the then-current storage amount. If you do not want a storage allocation increase, you must notify YottaServers via a response to the ticket within 72-hours of receiving the notification and reduce your amount of data that is being backed up to a level below your original plan allotment. If the allotment amount is exceeded by more than 10GB, YottaServers will suspend the backup service, and contact you via the ticketing system to request authorization that the backup allotment be increased by the required amount. Backups will not resume until the allotment has been increased or an agreement has been reached on what to backup. If no response is received from you in ten business days YottaServers will cancel the backup service entirely and you will no longer be billed for it.
YottaServers will have the right at its sole discretion at any time to substitute certain Services or Servers, or the means of delivery of certain Services, provided to you under a Service Schedule with comparable Services or Servers. From time to time YottaServers may remove equipment from service due to age, irreparability, or other factors. Except in the event of an emergency, YottaServers will provide Customer with at least thirty (30) days’ notice before substituting any such Services or Servers.
YottaServers will have the right to invoice you for any Charges due under this TOS that it failed to invoice or collect at the time such Charges were owed upon discovery of the omitted Charges and you will pay such amounts as set forth in the following section.
You will pay all Charges for the first month of service and charges for any setup fees in advance on the first day of the Initial Term. You will pay all subsequent charges for Services in their entirety in advance on each Renewal Date of the service. You will pay for any non-recurring or usage fees. If you pay for the Services by credit or debit card or Paypal, you authorize YottaServers to charge your credit or debit card or Paypal to pay for any charges that may apply to your account. You have a specific obligation to immediately notify YottaServers of any changes to your credit or debit card account or Paypal information as well as any applicable account number or cancellation or expiration of the account, your billing address, or any information that may prohibit YottaServers from properly charging your account. In the event of a change to your credit or debit card that results in the failure to pay your fees for Services and applicable taxes when due, YottaServers shall have all rights as set forth in the Failure to Pay section below.
Refund and Disputes
All payments to YottaServers are non-refundable and include any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time that the dispute occurred. If you dispute a charge that, at YottaServers’ sole discretion, is a valid charge under the provisions of the Policies and Procedures, you will pay the applicable amount within seven business days after YottaServers confirms to you that the amounts were properly charged. If you were billed in error, YottaServers will issue a credit for the amount billed incorrectly within ten business days after it determines that an error has been made. Credits issued have no cash value and will be applied against current invoices or future services. If YottaServers determines you were billed in excess of 200% the correct charge YottaServers will refund the excess pay if the customer desires a refund instead of a credit.
Failure to Pay
Failure to fully pay your fees for Services and applicable taxes when due shall be a material breach of this TOS, justifying YottaServers to temporarily deny service or terminate this TOS. Charges not paid by the Due Date are subject to an interest rate that is the lower of 3% per month or the highest rate permitted under applicable law beginning on the third day after the Due Date until all past due amounts are fully paid. YottaServers may, at its sole discretion, suspend or terminate Services for non-payment of fees. Services interrupted or cancelled for non-payment are subject to a $25 suspension fee per server. All amounts due, including the suspension fee must be paid before services are reinstated. You are responsible for any costs that YottaServers incurs in enforcing collection, including reasonable attorney’s fees, court costs and collection agency fees.
Access and Control Policy. When a new account is registered with or transferred to YottaServers or one of its affiliates, the process requires and results in the creation of the following within the records of YottaServers, in association with said new account:
- Name of registrant
- Email address
- User name
- Associated payment information
- If a person contacts YottaServers and claims that he or she is entitled to access to an account registered with YottaServers or its affiliate but is without access (for reasons such as but not limited to forgotten password or forgotten user name, data loss or corruption on personal computer, improper lock out, and so forth), YottaServers will give access to the person who acceptably evidences he or she has all of the following:
- Name of the original registrant
- Email address of the original registrant
- The user name of the original registrant, if possible;
- The associated payment information of the original registrant
- Photo identification evidencing she or he is the rightful possessor and user of said credit card or payment medium
YottaServers will not give access and control to a claimant not meeting the above criteria unless YottaServers is served with a valid order of a court, agency, or appropriate Internet controlling entity such as Internet Corporation for Assigned Names and Numbers (“ICANN”), requiring YottaServers to give such access and control to said claimant or unless there is submitted to YottaServers at 1211 Scott Ave. Waterloo IA 50701 a written statement duly signed by the original registrant of said account which is duly notarized, and in which said original registrant confirms that said claimant is entitled to access and/or control of the account, together with a written notarized statement duly signed by claimant which confirms claimant is entitled to access and control of said account and has read and agreed to these Terms of Service. Customer acknowledges and accepts that the foregoing access and control policies and procedures are the only way that notice can be given and changes can be affected regarding said access and/or control; and, further, that any other changes made directly by Customer or by others within the online records of YottaServers or of its affiliates shall not be deemed sufficient to give notice to YottaServers or its affiliates of any changes in said access or control.
- Customer acknowledges and accepts said access and control policy and procedure, agrees not to bring any claim in the form of a lawsuit or otherwise against YottaServers arising out of its following said policy and procedure, agrees immediately to dismiss any claim so brought, and hereby releases YottaServers from all liability and all claims for damages or any other liability whatsoever that may arise out of YottaServers’ following said policy and procedure.
Disputing Site or Account Ownership.
Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site hosted by YottaServers or in an associated YottaServers account. YottaServers is not obligated to resolve any such disputes. If multiple persons claim ownership of or rights in a site hosted by YottaServers or in an associated YottaServers account, and, in YottaServers’ sole judgment, there is not certainty as to the ownership of or rights in said site or account, then YottaServers will, to the extent of its ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves YottaServers of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what YottaServers, in its sole judgment, deems to be a reasonable time, then YottaServers, at its option and without any obligation to do so, may, in accordance with and subject to the laws of the State of Iowa, file an interpleader action in a court of competent jurisdiction within the State of Iowa for the purpose of allowing the contending persons to resolve said dispute and to reach certainty regarding ownership of or rights in said site and/or account. The person or persons conclusively and finally determined by the interpleader action to be the rightful owner(s) or interest holder(s) of said site and/or associated account shall be obligated to reimburse YottaServers for all of its expenses relative to said interpleader action including without limit all its court costs and reasonable attorney fees. All amounts owed to YottaServers under this section 5.03 shall be deemed due immediately upon 30 days after judgment or settlement is reached.
Transfer of Ownership.
YottaServers is not responsible to determine ownership of websites hosted by or accounts opened with YottaServers or its affiliates. By accessing YottaServers’ system, registering, or using any of the services provided by YottaServers, the Customer, or any other person so accessing, registering or using, hereby represents and warrants that the information provided in connection with said registration, including as well information concerning ownership of accounts, is true, accurate, and complete in each material detail. Any disputes arising regarding the ownership of any account opened with YottaServers or any of its affiliates are subject to the terms and conditions herein.
YottaServers will recognize a change of ownership of account(s) with YottaServers or its affiliates only in the event that at least one of the following occur:
- There is received by the Compliance Manager (Tim Hass) a written statement (in a form acceptable to YottaServers or applicable affiliate) containing the notarized signature of the original owner of the account, confirming that ownership of the account has been transferred to a person (claimant) claiming to own said account along with a written statement containing the notarized signature of the claimant confirming that she or he has acquired said ownership and, has read and agrees to be bound by these Terms of Service; or,
- YottaServers is served with a valid order of a court, agency, or appropriate internet controlling entity such as Internet Corporation for Assigned Names and Numbers (“ICANN”), requiring YottaServers (or affiliate) to transfer such ownership to said claimant.
Customer acknowledges and accepts that the foregoing policies and procedures regarding transfer of ownership are the only way that notice can be given and changes can be affected regarding said transfer of ownership within YottaServers; and, further, that any other changes made directly by Customer or by others within the online records of YottaServers or of its affiliates shall not be deemed sufficient to give notice to YottaServers or its affiliates of any changes in said ownership.
This Agreement may be terminated:
- By you during any Term, without cause, by giving YottaServers no less than two days prior written notice.
- By YottaServers in the event of your material breach of this TOS
- By YottaServers, at any time, without notice, if, in YottaServers’ sole judgment, you are in violation of any terms or conditions of the AUP or SLA.
- By YottaServers, without cause, upon 30 days notice to Customer.
If you terminate this TOS, or if YottaServers terminates this TOS for your breach, before the end of the Term you will be required to pay immediately and without delay all charges, fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the Term and any other amounts that you owe to YottaServers under this TOS including, but not limited to, bandwidth overage charges.
If you provide, in writing, your desire to cancel Service(s) or Server(s) 15 days or more in advance of the end of the current Term, YottaServers, at its sole discretion, may prorate your bill for your final Term to the amount of time the Service(s) or Server(s) are used during the final Term.
To provide your notice of termination, you must submit a cancellation ticket via the ticketing system and fill out the corresponding cancellation form to initiate the cancellation of your service(s) or server(s). You will be required to confirm that you want to cancel your service(s) or server(s) a second time once YottaServers has received the ticket and sent you a response asking for the second confirmation.
Modification of Terms
Any terms and conditions set forth in a Service Schedule agreed to by you and YottaServers will take precedence over the terms of this Agreement.
Use of Services
The AUP is posted on the YottaServers site at http://www.yottaservers.net/about/legal/acceptable-use-policy/ and may be updated from time to time. By using the services, you agree to be bound by the terms of the AUP and any modifications to the terms. YottaServers may terminate your account without notice for any violation of the AUP or this TOS.
Password Security/Order Validity
It is your sole responsibility to monitor use of your user ID and password (“Access Codes”) for all purposes, including, but not limited to, ordering from YottaServers’ website and customer support portal. You accept all responsibility for the security of your Access Codes and utilization of the secure areas of YottaServers’ website. All orders and authorization for advanced support time placed using the Access Codes will, for all purposes, be deemed to be in writing signed by you and admissible and enforceable as other business records in documentary form.
Support Services and Boundaries
YottaServers provides 24/7/365 technical support to our customers based on the Support Tier purchased. We limit our technical support to our areas of expertise. The following are our guidelines when providing support:
- YottaServers provides support related to your Service(s) and/or Server(s).
- YottaServers does not provide support for non-supported software specific issues, such as any programming, HTML, third party applications or any other such issue.
- YottaServers does not provide technical support for your clients.
You warrant, represent, and covenant to YottaServers that:
- Customer represents and warrants that, if an individual, Customer is at least 18 years old and otherwise legally competent in all respects to, or, if an entity, Customer is a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms. Additionally, Customer represents and warrants that neither they, nor any entity they represent, is prohibited under any part of these Terms from registering or signing up with or otherwise subscribing to or receiving any of the Services from YottaServers. Further, Customer represents and warrants all information provided by Customer to YottaServers has been and is complete, accurate, and current, and that Customer shall continue to provide complete, accurate and current information to YottaServers in connection with all registration or renewal processes and further agrees to update all such information as necessary to maintain complete, accurate and current information. Although Customers of paid services offered through YottaServers must be at least 18 years of age and otherwise legally competent to accept and be legally bound by these Term, a parent or legal guardian of a minor may obtain an account on the minor’s behalf, and by doing so, consents to such minor’s use of the Services. Subscribing parents and legal guardians each for themselves, as applicable, accept and agree to be legally bound by these Terms, and assume full responsibility and liability associated with any failure of compliance with the Terms in connection with said minor’s use of any of the Services.
- You possess the legal right and ability to enter into this Agreement.
- You will use the Services only for lawful purposes and in accordance with this TOS and all applicable Policies and Procedures.
- 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.
- You are not located in, under the control of, or a national or resident of any country or territory to which export is prohibited under the laws of any country in which YottaServers operates.
- You are not on the US Treasury Department List of Specially Designated Nationals or the US Commerce Department’s Table of Deny Orders.
To the extent you purchase Internet bandwidth Services through YottaServers, you warrant and represent to YottaServers that:
- You will use the Service(s) and Server(s) only for lawful purposes.
- You will not transmit, retransmit or store material in violation of any federal or state laws or regulations (nor permit third parties to do so).
- You will comply with the applicable Policies and Procedures.
- You will notify the end users of and make commercially reasonable efforts to ensure that end users comply with the applicable Policies and Procedures.
Intellectual Property Policy
YottaServers claims no ownership interest in the content of Customer’s web site(s). By submitting content and data to YottaServers, Customer grants to YottaServers, its successors and assigns, the worldwide, royalty-free, and nonexclusive license under Customer’s copyrights and other rights, if any, in all material and content displayed in Customer’s web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media, in order to maintain such content on YottaServers’s servers during the term of these Terms. Customer also authorizes the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license shall terminate upon Customer’s cancellation of the Services as set forth herein.
These Terms do not give Customer any rights in YottaServers intellectual property or technology. YottaServers and related trademarks and logos are the exclusive property of YottaServers. Customer agrees that all code, including, but not limited to, execution code, source code and object code, written by YottaServers shall remain exclusively owned by YottaServers. YottaServers grants to Customer, its successors and assigns, the worldwide, royalty-free, and non-exclusive license under YottaServer’s copyrights and other rights, if any, in all code written by YottaServers, in order to maintain its content on YottaServers’s servers during the term of these Terms. YottaServers and Customer agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar YottaServers from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
COPYRIGHT, TRADEMARK, AND “IP RIGHTS HOLDER” NOTICE OF INFRINGEMENT INFORMATION
In accordance with the Digital Millennium Copyright Act, YottaServers has adopted a policy that provides for termination of websites hosted by YottaServers that are found to infringe on copyrights, trademarks or other intellectual property rights of third parties (each an “IP Rights Holder”) If an IP Rights Holder holder believes that there has been a violation of his or her copyright on a website that is hosted by YottaServers or a YottaServers subsidiary, and the IP Rights Holder wants YottaServers to remove the website or disable the material in question, YottaServers will remove the website or disable the material if the IP Rights Holder provides all of the following information:
- A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit location of the material.
- Information reasonably sufficient to permit contact to the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
- A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Email DMCA reports to firstname.lastname@example.org.
- IMPORTANT NOTE: IN THE EVENT YOU SEND US A NOTICE OF ANY KIND VIA EMAIL AND DO NOT RECEIVE A RESPONSE FROM US, PLEASE SUBMIT A DUPLICATE COPY VIA PAPER TO: 1211 SCOTT AVE, WATERLOO IA, 50701. DUE TO THE VAGARIES OF THE INTERNET, AND EMAIL COMMUNICATION IN PARTICULAR, INCLUDING WITHOUT LIMITATION THE BURDENS OF SPAM AND THE OCCASIONAL, UNINTENDED EFFECTS OF SPAM FILTERS, SENDING AN ALTERNATE FORM OF NOTICE VIA PAPER, WILL ASSURE THAT YOUR NOTICE WILL BE RECEIVED AND ACTED ON IN A TIMELY MANNER.
Third Party Products
YottaServers may provide you with access to other third party software and/or services (“Third Party Products”) through reseller relationships that YottaServers has established with certain commercial vendors. Unless otherwise notified, you understand that product support for Third Party Products is provided by YottaServers and not by the Third Party Vendor. Neither YottaServers nor any Third Party Vendor makes any representations or warranties, expressed or implied, regarding any Third Party Products. You expressly acknowledge and agree that use of third party products is at your sole risk and such third party products are provided “as is” and without representation or warranty of any kind from YottaServers or any third party vendor.
YottaServers is acting only as a reseller or licensor of certain services, hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-YottaServers Product”). YottaServers shall not be responsible for any changes in the Services that cause the Non-YottaServers Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-YottaServers Product either sold, licensed or provided by YottaServers to User or purchased directly by User used in connection with the Services will not be deemed a breach of YottaServers’ obligations under this Agreement. Any rights or remedies User may have regarding the ownership, licensing, performance or compliance of Non-YottaServers Product are limited to those rights extended to User by the manufacturer of such Non-YottaServers Product. User is entitled to use any Non-YottaServers Product supplied by YottaServers only in connection with User’s permitted use of the Services. User shall use their best efforts to protect and keep confidential all intellectual property provided by YottaServers to User through any Non-YottaServers Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. User shall not resell, transfer, export or re-export any Non-YottaServers Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
YottaServers reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if, in the sole judgment of YottaServers, your Services and/or Servers is the source or target of any violation of the AUP or this TOS. If inappropriate activity is detected, all of your Services and/or Servers in question will be deactivated until a thorough investigation is completed. Prior notification to you of disconnection is not assured. In some cases, law enforcement will be contacted regarding the activity.
These rights of action, however, do not obligate YottaServers to monitor or exert editorial control over the information made available for distribution via the Services or Servers. If YottaServers takes corrective action because of a possible violation, YottaServers will not refund you any fees that you paid in advance of the corrective action.
Limitation and Exclusion of Liability
You assume total responsibility and risk for your and your end users’ use of the services provided by YottaServers. You acknowledge that the internet:
- Contains materials some of which are sexually explicit, that may be offensive to some people.
- Is accessible by persons who may attempt to breach the security of YottaServers’ and/or your network facilities and the data contained therein.
To the maximum extent permitted by applicable law, in no event will YottaServers its affiliates, subsidiaries, employees, officers, directors, contractors, agents, other representatives or its suppliers have any liability for unauthorized access to, or alteration, theft or destruction of information distributed or made available for distribution via the services through accident, fraudulent means or devices, nor will they have liability with respect to YottaServers’ obligations under this agreement for any indirect, consequential, exemplary, special, incidental, or punitive damages, lost or stolen content, losses arising from the failure to furnish services or the cost of procurement of substitute services arising from or related to the services or performance of its obligations hereunder, whether arising in contract or tort (including negligence and strict product liability) even if YottaServers has been advised of the possibility of these damages.
The liability of YottaServers and its suppliers to you for any reason and upon any cause of action is limited to the amount you actually paid to YottaServers under this agreement during the one month immediately preceding the date on which the claim accrued. This limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
The fees for the services set by YottaServers under this agreement have been and will continue to be based upon this allocation of risk. Accordingly, you release YottaServers and its suppliers from any and all obligations, liabilities, and claims in excess of the limitation stated in this section.
The parties hereby waive any claim that these exclusions deprive them of an adequate remedy or cause this agreement to fail of its essential purpose.
WARRANTY DISCLAIMER – LIMITATIONS – INDEMNIFICATION
- Warranty Disclaimer. YOU, THE CUSTOMER, ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. YOTTASERVERS HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY YOTTASERVERS OR YOTTASERVERS’ REPRESENTATIVES INCLUDING, BUT NOT LIMITED TO, YOTTASERVERS SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. YOTTASERVERS DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. YOTTASERVERS DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. YOTTASERVERS DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR YOTTASERVERS IN PARTICULAR.
- Limitations on YottaServers’ Liability. YOTTASERVERS SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL YOTTASERVERS BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, CONVERSION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, IP RIGHTS HOLDER INFRINGEMENT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT YOTTASERVERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. YOTTASERVERS SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. YOTTASERVERS’ ENTIRE LIABILITY AND YOTTASERVERS’ EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF CUSTOMER’S ACCOUNT AS SET FORTH HEREIN. IN NO EVENT SHALL YOTTASERVERS’ LIABILITY TO YOU, THE CUSTOMER, EXCEED THE GREATER OF $1.00 OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE CUSTOMER, TO YOTTASERVERS FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE CUSTOMER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION . SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, YOTTASERVERS’ LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Indemnification of YottaServers. You, the Customer, agree to defend, indemnify and hold YottaServers, its affiliates and its sponsors, partners, other co-branders and the respective directors, officers and employees of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, but not limited to, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the Services, except to the extent the foregoing directly result from YottaServers’ own gross negligence or willful misconduct. YottaServers reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, the Customer.
Interruption of Service
YottaServers and its suppliers are not liable for any temporary delay of the Services. Further, YottaServers is not liable for any delay or failure to perform its obligations under this TOS, where the delay or failure results from any circumstances beyond YottaServers’ reasonable control or other cause beyond its reasonable control including, but not limited to any mechanical, electronic, communications or third-party supplier failure.
YottaServers does not disclose any personal information obtained about you from this website to third parties. YottaServers does cooperate with government and law enforcement officials to enforce and comply with the law. YottaServers will only disclose information about Customers upon valid request by government or law officials as YottaServers, at YottaServers’ sole discretion, believes necessary or appropriate to respond to claims and legal process (including subpoenas), to protect your property and rights; or the property and rights of a third party, to protect the safety of the public or any person, or stop activity considered illegal or unethical.
Third Party Beneficiaries
YottaServers and you agree that, except as otherwise expressly provided in this TOS, the Service Schedule(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this TOS, including but not limited to the insurance providers for either party or your customers.
This agreement is made under and will be governed by and construed in accordance with the laws of the state of Iowa without regard to its principles of conflicts of law and specifically excluding from application to this agreement that law known as the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of or relating to this agreement shall be the state and federal courts in Black Hawk County, Iowa and each party irrevocably consents to such personal jurisdiction and waives all objections thereto.
Severability and Partial Invalidity
In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.
The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of YottaServers, and any attempted assignment or delegation without such consent will be void. YottaServers may assign this TOS in whole or part. YottaServers also may delegate the performance of certain Service(s) or Server(s) to third parties.
All notices, demands, requests or other communications required or permitted under this TOS shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.
Relationship of the Parties
You and YottaServers are independent contractors and this TOS will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and YottaServers.
This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof.
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the TOS.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO YOTTASERVERS SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR YOTTASERVERS ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.