This is an agreement between Conseev LLC, a Minnesota limited liability company, as well as its partners and affiliates on the one hand, and the user of Techark Internet Services’s products and services on the other hand. In this Agreement “You” and “Your” refer to you or any agent, employee, servant or person authorized to act on your behalf. “We”, “Us” and “Our” refer to Conseev, LLC as well as its subsidiaries and sister companies (collectively, “Techark Internet Services”). This Agreement explains our obligations to you, and explains your obligations to us for various services offered by Techark Internet Services. When you use your account or permit someone else to use it to purchase or otherwise acquire access to additional Techark Internet Services service(s) or products or to cancel your Techark Internet Services services (even if we were not notified of such authorization), this Agreement covers such service or actions.
1) Term of Agreement; Modification. You agree that Techark Internet Services may modify this Agreement and the services it offers to You from time to time. You agree to be bound by any changes Techark Internet Services may reasonably make to this Agreement when such changes are made. If You have purchased services or products from Techark Internet Services, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the products or services.
2) Accurate Information. You agree to maintain accurate information by providing updates to Techark Internet Services, as needed, while You are using Techark Internet Services’s products and services. You agree You will notify Techark Internet Services within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Techark Internet Services to determine the validity of information provided by You will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Techark Internet Services has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Techark Internet Services has the absolute right, in its sole discretion, to terminate its Services and close Your account.
4) You agree not to engage in unacceptable use of any of Techark Internet Services products and/or services, which includes, without limitation, use of Techark Internet Services products and/or services to: (i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email or unreasonably large volumes of email on a daily basis, provided, Techark Internet Services, in its sole discretion, may permit You, if You have a legitimate purpose and after written request, to send more email than Techark Internet Services’s standard SMTP relay limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by Techark Internet Services to be in conflict with the spirit or intent of this Agreement or any Techark Internet Services policy; or (ix) use Your server as an “open relay” or similar purposes. This includes but is not limited to pirated software, hacking programs or archives, warez and mp3 sites and IRC bots. Techark Internet Services is the sole arbiter as to what constitutes a violation of this provision.
◦Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following: unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
◦It is a violation for anyone to employ posts or programs which consume excessive CPU time or storage space; permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for the user’s own account; or resell access to CGI scripts installed on our servers. Techark Internet Services prohibits the running of a public recursive DNS service on any Techark Internet Services server. All recursive DNS servers must be secured to allow only internet network access or a limited set of IP addresses. Techark Internet Services actively scans for the presence of public DNS services and reserves the right to remove any servers from the network that violate this restriction.
◦You are responsible for ensuring that there is no excessive overloading of Techark Internet Services’s DNS system or servers. You may not use Techark Internet Services’s servers and Your Server Account as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Techark Internet Services reserves the right to immediately remove sites that contain information about hacking or links to such information. Use of your server account as an anonymous gateway is prohibited, as is Your use of Techark Internet Services products and/or services to restrict or inhibit any other user from using and enjoying the Internet. You acknowledge and agree that Techark Internet Services has the right to remove Your server content temporarily or permanently from its dedicated servers if Techark Internet Services is the recipient of activities that threaten the stability of its network.
◦You agree not to provide free services such as free hosting, free subdomains or free email accounts. Account holders found violating this section will be terminated immediately and all payments forfeited.
5) Storage and Security. At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on Techark Internet Services servers; and (iv) ensure the confidentiality of Your password. Techark Internet Services’s servers are not an archive and Techark Internet Services shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The services offered by Techark Internet Services are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. Techark Internet Services shall have no liability to You or any other person for Your use of Techark Internet Services products and/or services in violation of these terms.
◦It is the user’s responsibility to keep all CMS installations up to date, as well as all plugins and themes being used by a site. Outdated installations are major security risks and it is the user’s responsibility to make sure that the security of his sites is not put under threat by having outdated installations.
6) Non-exclusive License. If You have licensed software from Techark Internet Services, Techark Internet Services grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the software. You agree You are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
Techark Internet Services reserves all rights to the software. The software and any copies You are authorized to make are the intellectual property of Techark Internet Services. The source code and its organization are the exclusive property of Techark Internet Services and the software is protected by copyright law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the software and all rights are reserved by Techark Internet Services.
Any such software and services are provided to You “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
7) Techark Internet Services Account. Techark Internet Services will host an account for You corresponding with the purchased, leased or provided domain name(s) and for the period of time corresponding with the payment plan chosen by You. The contract will automatically renew at the end of The Term unless otherwise specified by You. Once the account cancellation request is received and we process the request as per the account holders consent, the agreement between You and Techark Internet Services is officially terminated. We reserve the right to remove the account from the web server at any time thereafter. Techark Internet Services will NOT host the site for any time period left once the cancellation request has been received and processed. It is Your responsibility to make sure that You and Your respective clients have access to all their files and relevant data before initiating the cancellation request. Techark Internet Services shall not be responsible for any loss of data once the account recurring billing has been cancelled.
For your convenience and continuous subscription benefits as a customer, if a payment is not received on the scheduled billing date and you have not canceled the account, you authorize us to continue billing any available billing method on file including extending the expiration date until we are notified by you or the credit card company that the account is no longer valid.
8) Legal Purposes. The web hosting and reseller hosting account and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Violations of these or any other provisions of this Agreement may result in termination of the services provided by Techark Internet Services, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of Techark Internet Services based upon the severity of the violation. Techark Internet Services reserves the right to refuse service if any of the content within, or any links from, the Account Holder’s website is deemed illegal, misleading, or obscene, or is otherwise in breach of Techark Internet Services’s then current Acceptable Use Policy, in the sole and absolute opinion of Techark Internet Services.
9) Rates and Prices. You acknowledge that the nature of the service furnished and the rates and charges have been communicated to You. You are aware that Techark Internet Services reserves the right to change the specified rates and charges from time to time.
10) Account Use. You agree to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. You are responsible for security of your password. Techark Internet Services will not change passwords to any account without proof of identification, which is satisfactory to Techark Internet Services, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes You, You understand that Techark Internet Services will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Techark Internet Services be liable for any losses incurred by You during this time of determination of ownership, or otherwise. The You agree to indemnify and hold harmless Techark Internet Services from any and all claims arising from such ownership disputes.
11) Safe Use. You agree not to harm Techark Internet Services, its reputation, computer systems, programming and/or other persons using Techark Internet Services.com’s services. Techark Internet Services.com reserves the right to select the server for Account Holder’s website for best performance. A failure by You to agree to and comply with the terms of this provision may result in the termination of the services provided to You without any refunds of the unused prepaid portion of the fees.
12) Third Party Content. If You elect to sell or resell advertising or web space to a third party then You will be responsible for the contents of that advertising and the actions of that third party. Techark Internet Services has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current Techark Internet Services policy or agreement. Such content may result in the suspension or in the immediate termination of Your account. You are responsible for monitoring all domain transfers, renewal and orders. In the event that an error occurs the account holder must notify Techark Internet Services immediately of the error. In no event shall Techark Internet Services.com be liable to the Account Holder for any damages resulting from or related to any failure or delay of domain registration, transfer or renewal.
13) Fees, Payment and Refund. As consideration for the products and/or services purchased by You and provided to You by Techark Internet Services, You agree to pay Techark Internet Services at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your services are suspended, terminated, or transferred prior to the end of the term of service. Techark Internet Services expressly reserves the right to modify pricing through email notification and/or notice on its website.
14) Billing. If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchase the products or services. If for any reason Techark Internet Services is unable to charge Your account for the full amount owed Techark Internet Services for the products and/or services provided, or if Techark Internet Services is charged a penalty for any fee it previously charged to You, You agree that Techark Internet Services may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason Techark Internet Services is unable to charge Your credit card with the full amount of the services provided, or if Techark Internet Services is charged back for any fee it previously charged to the credit card You provided, You agree that Techark Internet Services may pursue all available remedies in order to obtain payment. You agree that among the remedies Techark Internet Services may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or products and/or services registered or renewed on Your behalf. Techark Internet Services reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular services, including additional costs that it may incur in providing the services and pass these costs along to You.
15) Limitation of Liability; Waiver and Release. The services offered by Techark Internet Services are being provided on an “AS IS” and Techark Internet Services expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, Techark Internet Services expressly does not warrant that the Techark Internet Services products and/or services will meet Your requirements, function as intended, or that the use of the provided services will be uninterrupted or error free. In no event shall Techark Internet Services be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the services, even if Techark Internet Services is aware of or has been advised of the possibility of such damages.
16) Indemnification. Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Techark Internet Services and all affiliates of Techark Internet Services, and all officers, agents, employees, and representatives of Techark Internet Services, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the products and services and Your acquisition and use thereof, including, but not limited to, the provision of the Techark Internet Services products and/or services by Techark Internet Services and its agents and employees. Further, You agree to defend, indemnify and hold Techark Internet Services harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should Techark Internet Services be notified of a pending law suit, or receive notice of the filing of a law suit, Techark Internet Services may seek a written confirmation from You concerning Your obligation to defend, indemnify Techark Internet Services. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Techark Internet Services shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Techark Internet Services of any such claim promptly in writing and to allow Techark Internet Services to control the proceedings. You agree to cooperate fully with Techark Internet Services during such proceedings.
17) Termination. You agree that You will be responsible for notifying Techark Internet Services should You desire to terminate Your use of Techark Internet Services’s Services. Notification of Your intent to terminate must be provided to Techark Internet Services no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date. Unless an explicit confirmation is sent by Techark Internet Services confirming the cancellation of the service, the account shall be considered ACTIVE. Any account will be liable to the pre-agreed monthly charges until Techark Internet Services confirms a cancellation request sent by the customer. TechArk is not responsible for recurring subscriptions, including PayPal left active after a customer has chosen to cancel their services. Funds received after cancellation may at TechArk’s discretion may be placed as an internal account credit for use against future services offered by TechArk but are considered non-refundable.
18) Notices. You agree that any notices required to be given under this Agreement by us to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
19) Legal Age. You attest that you are of legal age to enter into this Agreement.
20) Final Agreement. This Agreement, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
21) No Agency Relationship. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
22) Waiver. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
23) Enforceability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
24) Assignment and Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Techark Internet Services’s prior express written consent.
25) Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Techark Internet Services, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Techark Internet Services may immediately terminate this Agreement.
26) Fair Usage Policy. It is acknowledged by users that these resource allotments are optimized and dedicated towards serving web documents and self-need email services and is not to be used as storage area for electronic files, or as a provisioning service for 3rd party email or FTP hosts. All downloadable files or files stored on server must be available for download via a HTML document stored on hosted account in publicly accessible area and must be directly related to the general nature of the website index.
Following (including but not limited to), is NOT PERMITTED:
◦Use of the hosting as a virtual disk, or in other words, as a space for files that are not elements of your website.
◦Illegal contents including, but not limited to pirated software, music, films, applications or other media stored in any file formats or extension.
◦Online storage of file archives, backups, documents, log files, cache data, etc.
◦FTP Service / File Sharing services.
◦Sharing of your account.
◦Having high-limit or unlimited access to resources does not mean, that you can use your hosting in a such a way that it negatively affects the server operation, for illegal purposes or in any way that violates applicable legislation.
27) It is acknowledged that any single account is entitled to utilize the server resources, within reason, up to what is allotted or by what is physically available. If resources become scarce, Techark Internet Services reserves the right to limit users of the affected machine to a lower limit to preserve the effectiveness of the service for all users. If a particular user is in extreme excess of what the average users of the machine have in use (actually used) of their resource allotments, that customer may be asked to remove content, cut resource usage, or relocate to a dedicated server. This policy only applies to web sites that are considered to be abusive in service, disk space or resource consumption and where it is evident that the “fair-use” of resources among customers has been breached, particularly in regards to disk space, bandwidth or CPU processing power utilization. Web sites that are found to contain either/or no html documents, a large number of unlinked files are subject to warning, suspension or cancellation at the sole discretion of Techark Internet Services.
If a “Fair-Usage” breach occurs, which’s determination is solely up to Techark Internet Services, subscriber may have to remove files from or reduce access to subscriber’s account to an extent as determined by Techark Internet Services, in order to restore full serviceability to other subscribers affected by the breach. In any case, the subscriber will be notified of any actions that Techark Internet Services may have to take.
In order to ensure a consistent and quality experience for all Subscribers, Techark Internet Services does place automated safeguards to protect against any one site growing too quickly and adversely impacting the system until Techark Internet Services can evaluate said sites resource needs. Techark Internet Services reserves the right to limit processor time, bandwidth, or processes in cases where it is necessary to prevent negatively impacting other Subscribers.
28) Terms of managed services – Techark Internet Services may from time to time offer what is termed as managed services. Managed services are defined as services or products offered to a customer which are maintained, updated, secured or otherwise cared for by Techark Internet Services’s staff or employees.
Techark Internet Services reserves the right to impose the following regulations, rules and stipulations on all managed services:
– Refuse to grant or otherwise restrict, revoke,disable or modify customer access, permissions, logins, or root access to any part of the service at any time for any reason
– Change, modify, add, or remove software, settings, configurations, or other items with or without notifying the customer at any time for any reason.
– Other items at Techark Internet Services’s discretion not listed above.
It shall also be up to Techark Internet Services to determine what services it terms as managed and what is considered unmanaged. Should the actions of a customer result in an issue which burdens Techark Internet Services’s staff in having to repair the issue Techark Internet Services reserves the right to charge up to $175 USD an hour, with a one hour minimum. It shall be up to the managing team member of Techark Internet Services to determine when and why technician time fees apply in addition to any regular managed service fees should an issue occur.
29) Abuse of Services – TechArk reserves the right to actively monitor its network using any methodology or technology available to it to ensure that its services are not being abused. Should abuse be detected, abuse being defined as services being used in any manner in violation of this agreement or in any action determined to be abusive in nature at the sole discretion of TechArk, it shall make an attempt to notify the customer to allow them to rectify the issue and provide the customer a deadline within which to respond. Should the customer fail to acknowledge and comply with the instructions in the abuse notification, TechArk, at its sole discretion may choose to suspend, terminate, or otherwise modify the customer’s services to stop the abuse. TechArk reserves the right to suspend services without notifying a customer of an abuse complaint if the customer has not responded to previous complaint notices. The customer shall remain legally and financially liable for all suspended services and service suspension does not in any manner constitute cancellation of services or release of financial or legal liability of the customer.
30) Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.