Terms of Service
The Terms of Service (this "Agreement") is between TSCAD Technologies, LLC, DBA WireFlare, and the person (individual or legal person) whose signs WireFlare’s service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer’s use of WireFlare’s services.
Table of Contents:
- Payments (All Services Excluding Dedicated Servers)
- Cancellation and Early Termination (All Services Excluding Dedicated Servers)
- Payments (Dedicated Servers)
- Cancellation and Early Termination (Dedicated Servers)
- Customer Information
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Resource Usage (Hosting Services)
- Bandwidth Usage (Hosting Services)
- SSL Certificates
- McAfee SECURE™ & PCI Certification
- Online Data Backup
- Request for Customer Information
- Back Up Copy
- Request for Rebuild/Restore of Hosting Package
- Changes to WireFlare’s Network
- Force Majeure
- Governing Law/Disputes
- Governing Law/Disputes
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of WireFlare’s credit approval requirements, WireFlare agrees to provide the services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that WireFlare generates an e-mail message to Customer announcing the activation of the Customer’s account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless WireFlare or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
(a) Recurring Fees.
(b) Credit/Debit card and your Address on File
(c) Non-Recurring Fees.
(e) 30 Day Money Back Guarantee
Renewal notices are emailed fifteen (15) days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged on the day your renewal is due. Service will be made inactive (suspended) on accounts that are not paid by the seventh (7th) day after the due date at 12 PM PST. An account means all services provided to you. WireFlare reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. All orders made with a credit card are expected to work on the monthly renewal date each month. If the card declines then the customer is subject to a $25 one time fee on top of the monthly renewal price. Any accounts made inactive for non-payment is subject to a $10.00 late payment fee. All accounts will be terminated if payment is not made within 90 days of the due date. Termination means that all data stored on WireFlare servers including files and databases will be deleted.
When an order is placed with a credit/debit card, your card is stored on file and will automatically be charged every month on the date your renewal notice is sent (two days before your actual renewal date). For security purposes your address on file with us must match the address of your credit/debit card. If this address does not match, our payment gateway will not accept the transaction. If you have a credit card on file and the transaction is declined due to the address this transaction might show up as a pending charge but will not be processed through. If you have a debit card on file and the transaction is declined due to the address your bank will pull the money out of your account but this money will be refunded back to your account by your bank. It is recommended to always store a credit card on file instead of a debit card.
All customers exceeding their bandwidth allowance will be sent invoices due upon receipt each month. All customers are responsible for monitoring transfer or bandwidth usage each month. Bandwidth overages are charged at $5.00 per each GB used over the allowed limit of the package. Customers have the option before their bandwidth billing cycle ends to upgrade per our a la carte upgrade option. Once your plan is upgraded you can not request a downgrade of the same plan for at least one month.
At WireFlare’s request Customer shall remit to WireFlare all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on WireFlare, regardless of whether WireFlare fails to collect the tax at the time the related services are provided.)
All new WireFlare Customers are eligible for a 30 day money back guarantee on all services excluding Dedicated Servers, Domain Names and SSL Certificates. A new customer is one who has never purchased a hosting package from WireFlare in the past. Also if a customer purchases a 2nd, 3rd, etc. service and wishes to cancel this particular service they are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee. If the TOS/AUP agreed upon when ordering is violated this also makes you ineligible for the 30 day money back guarantee. We also reserve the right to not accept a refund request on a case by case basis if we feel our services were abused and/or taken advantage of.
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event WireFlare terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for WireFlare breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to WireFlare or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department
Cancellation request must be submitted from the main email address on file with WireFlare
Hosting cancellation requests must contain the main IP address (N2O VPS or VPS account) or main domain of the hosting plan you wish to cancel
We do not offer a 30 day money back guarantee on Dedicated Servers.
Renewal notices are emailed 10 days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged 3 days before your renewal date. (ie. Your renew date is May 20th, your invoice will be sent on May 10th and your card on file will be charged May 17th) If your billing method is paypal you will need to manually pay your invoice every month by the due date at 12 PM EST.
All renewals made with a credit card are expected to work on the day your card is charged. If the card declines then the customer is subject to a $25 one time fee on top of the monthly renewal price.
In the event you fail to pay your invoice by the due date, we reserve the right to suspend your entire account and a late fee of $25 applies. An account is defined as all services being used by the customer such as VPS hosting, etc. If your invoice is still not paid by the 3rd day from the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.
Customer acknowledges that a minimum of 14 days cancellation notice prior to the following renewal term must be given in writing to WireFlare or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department
Cancellation request must be submitted from the main email address on file with WireFlare
Cancellation request must contain the main IP address of the server you wish to cancel
Cancellation of all PayPal payments is the responsibility of the client. WireFlare will not be held responsible for payments made in error.
Customer agrees to use the service in compliance with applicable law and WireFlare’s Acceptable Use Policy (link), which is hereby incorporated by reference in this Agreement. Customer agrees that WireFlare may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of WireFlare’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with WireFlare’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between WireFlare and Customer regarding the interpretation of the AUP, WireFlare’s commercially reasonable interpretation of the AUP shall govern.
Customer represents and warrants to WireFlare that the information he, she or it has provided and will provide to WireFlare for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to WireFlare that he or she is at least 18 years of age. WireFlare may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless TSCAD Technologies LLC, WireFlare, WireFlare’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
WIREFLARE DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW WIREFLARE DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF WIREFLARE AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
(a) Suspension of Service.
Customer agrees that WireFlare may suspend services to Customer without notice and without liability if: (i) WireFlare reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) WireFlare reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay WireFlare’s reasonable reinstatement fee if service is re-instituted following a suspension of service under this subsection.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if WireFlare fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by WireFlare prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from WireFlare describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
WireFlare Customers may not initiate the following (below), if any customer does WireFlare may terminate the account with no refund. Depending on the situation there will/won’t be warnings sent.
- a) Use 25% or more of system CPU resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
- b) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
- c) Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed (applies to shared/reseller hosting only).
- d) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons (applies to shared/reseller hosting only).
- e) Run any software that interfaces with an IRC (Internet Relay Chat) network.
- f) Run any file sharing, bit torrent or other P2P network services, client or server software.
- g) Run any gaming servers such as counter-strike, half-life, battlefield 1492, etc
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.
WireFlare is not a domain registrar. We are however, a reseller for Enom. All WireFlare customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by Enom. You have the option to add privacy protection to your domain (fee). You will receive notice from WireFlare once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain. If you choose to cancel other services, including hosting, with WireFlare your domain will still remain active through WireFlare. If you fail to pay your renewal WireFlare will not renew your domain past the cancellation date. We are not responsible for domains that expire. It is your responsibility to renew your expiring domain. If your credit card is on file with us you will have the option to setup automatic renewals.
WireFlare is not a Certificate Authority. We are however, a reseller for GeoTrust, Comodo and Symantec SSL Certificates. All WireFlare customers who purchase a SSL Certificate from us are bound by the terms and conditions set forth by the respective certificate authority. You will receive notice from WireFlare once your SSL Certificate is up for renewal. If you choose to cancel other services, including hosting, with WireFlare your SSL Certificate will still remain active through WireFlare. If you fail to pay your renewal WireFlare will not renew your SSL Certificate past the cancellation date. We are not responsible for SSL Certificates that expire. It is your responsibility to renew your expiring SSL Certificate. Automatic renewal is not available for SSL Certificates
All WireFlare customers who purchase McAfee SECURE™ or a McAfee PCI Certification are bound by the terms and conditions set forth by McAfee. WireFlare will not handle any transactions made for McAfee SECURE™ or McAfee PCI Certification services. WireFlare will not be held responsible for any disputes, refunds or charges. WireFlare will not provide technical support for any McAfee SECURE™ or McAfee PCI Certification services.
WireFlare does not host online data for corporate backup purposes. We are however, a reseller for Mozy. All WireFlare customers who purchase Online Data Backup are bound by the terms and conditions set forth by Mozy. You will receive notice from WireFlare once your Online Data Backup plan is up for renewal. If you do not renew your Online Data Backup plan by the expiration date you run the risk of loosing your data. If you choose to cancel other services, including hosting, with WireFlare your Online Data Backup plan will remain active through WireFlare. If you fail to pay your renewal WireFlare will not renew your Online Data Backup plan past the cancellation date. We are not responsible for Online Data Backup plans that expire. It is your responsibility to renew your expiring Online Data Backup plan. If your credit card is on file with us you will have the option to setup automatic renewals.
WireFlare does not host VoIP PBX Servers. We are however, a reseller for Jive Communications. All WireFlare customers who purchase VoIP services are bound by the terms and conditions set forth by Jive Communications. You will receive notice from WireFlare once your VoIP plan is up for renewal. If you do not renew your VoIP plan by the expiration date you run the risk of loosing your account, phone numbers and setup data. If you choose to cancel other services, including hosting, with WireFlare your VoIP plan will remain active through WireFlare. If you fail to pay your renewal WireFlare will not renew your VoIP plan past the cancellation date. We are not responsible for VoIP plans that expire. It is your responsibility to renew your expiring VoIP plan. If your credit card is on file with us you will have the option to setup automatic renewals.
Customer agrees that WireFlare may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that WireFlare believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Customer agrees to maintain a current copy of all content hosted by WireFlare notwithstanding any agreement by WireFlare to provide back up services.
During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $10 one time fee will be enforced.
Upgrades and other changes in WireFlare’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. WireFlare reserves the right to change its network in its commercially reasonable discretion, and WireFlare shall not be liable for any resulting harm to Customer.
Notices to WireFlare under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://wireflare.com/. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
WireFlare shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond WireFlare’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN SACRAMENTO COUNTY, WIREFLARE, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Any invoices that are not paid within 60 days of their due date will be forwarded to collections for payment. All invoices forwarded to an outside collection agency will be assessed an additional 30% fee to cover the cost of collections. A collections fee is separate and independent of late fees.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on WireFlare unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without WireFlare’s prior written consent. WireFlare’s approval for assignment is contingent on the assignee meeting WireFlare’s credit approval criteria. WireFlare may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
Last updated on 08/06/2014