Dedicated Server: Terms & Conditions
ClearBearing, Inc. (“ClearBearing”) hereby sets forth the terms and conditions of service which govern the customer subscription for ClearBearing Dedicated Server and other Internet-related services provided by ClearBearing. As used in this agreement, “Client”, “you” or “your” means you the customer. By making use of ClearBearing’s Dedicated Server, you acknowledge that you have read these Terms and Conditions of Service, and the Acceptable Use Policy, and you agree to their terms and conditions and all policies posted on the clearbearing.com Web Site. ClearBearing reserves the right to modify any and all policies by posting such changes on its Web Site. ClearBearing may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services.
Access to ClearBearing Dedicated Server is provided subject to the following:
- ClearBearing, Inc. (herein known as “ClearBearing”) exercises no control over the content of the information passing through its networks.
- ClearBearing makes commercially reasonable efforts to maintain acceptable performance of its dedicated servers, but makes no warranties of any kind, whether expressed or implied, for the service it is providing. ClearBearing also disclaims any warranty of merchantability or fitness for a particular purpose. ClearBearing will not be responsible for any damages or losses you suffer. This includes loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions caused by its own negligence or your errors or omissions, or due to inadvertent release or disclosure of information sent by you. ClearBearing is not liable for accidental or inadvertent corruption, deletion, or disclosure of data stored or transmitted to or from its system. ClearBearing is not in any way responsible for data or files residing on the dedicated server.
- ClearBearing’s SLA for dedicated servers applies to: server hardware and operating system installation, power, bandwidth, support, & network connectivity. Excluding planned maintenance, this SLA will provide 99.9% uptime guarantee for dedicated servers, and hardware replacement/operating system reinstallation within 2 hours in the event of a server failure. The sole remedies for a failure to meet this SLA are: for a server downtime of one or more hours a two (2) day credit. For a server downtime of four (4) or more hours, a two (2) week credit will apply.
- ClearBearing Dedicated Servers may only be used for lawful purposes. In accepting these terms and conditions, you warrant that your use of ClearBearing Services does not violate any law. Transmission or storage of any information, data, or material in violation of any US Federal or State regulation or law is prohibited. This includes, but is not limited to: copyrighted material, trademarks, or service marks, material legally judged threatening or obscene, or material protected by trade secret. You agree to indemnify and hold harmless ClearBearing from any claims resulting from your use of the service which damages you or another party or parties.
- You are responsible for all usage of any services in your name.
- You have the right to cancel service, in writing, with ClearBearing at any time, without advance notice. Similarly, ClearBearing has the right to suspend service to you at any time, and for any reason, without notice. If payment has been made for future service at the time of cancellation by customer, ClearBearing shall pro-rate a refund for the length of service pre-paid but not used, calculated at the normal monthly rate offered by ClearBearing. If payment has been made for future service and the cancellation is the choice of ClearBearing, ClearBearing shall pro-rate a refund for the length of services pre-paid but not used, calculated at the rate originally paid by customer.
- Billing begins the day your dedicated server is provisioned. You will receive an e-mail notice that your server is ready. You are responsible for paying your account, regardless of how much you use it, until the service is terminated in writing. If the account is more than 30 days past due, ClearBearing reserves the right to terminate the service, which includes disabling all network access to any dedicated servers attached to the delinquent account.
- Dedicated Server fees are automatically billed to the customer’s credit card each month. Accounts are in default if payment is unobtainable for more than 15 days. Accounts unpaid 30 days after date of the first attempt to charge the credit card may have their service interrupted. Such interruption does not relieve you from the obligation to pay the monthly account charge. Only a written request to terminate your service relieves you of your obligation to pay the monthly account charge. Accounts in default are subject to an interest charge of 1.5% per month or your state’s legal maximum allowable rate. If you default, you agree to pay ClearBearing its reasonable expenses, including but not limited to attorney and collection agency fees, incurred in enforcing its rights under these Terms and Conditions. An act of default accelerates payments to be due immediately.
- 30-Day Money-back Guarantee: A full refund of the first month’s fees may be obtained for any reason if cancellation of the account is requested in writing within 30 days of account creation. Any set-up fees incurred are not included in the money-back guarantee. Monthly fees are not refundable after 30 days.
- Customers (or customers’ contractors) are expected to maintain current backup copies of all data for use in case of an emergency.
- You agree to comply with the requirements of the Communications Decency Act of 1996 and the Digital Millennium Copyright Act (the “DMCA”) and acknowledge that ClearBearing is a “service provider” under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, ClearBearing will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, ClearBearing has a policy of terminating accountholders who are repeat copyright infringers.
- Except where required by law or in the case of Unsolicited Commercial Email (UCE), ClearBearing makes no effort to moderate the content of traffic passing through its networks. Neither the content of Web Sites located on servers colocated on ClearBearing’s network nor the links to other Web Sites are screened, approved, reviewed or endorsed by ClearBearing. ClearBearing is not a publisher of any content that may be available through the links to and from them, and is acting solely as an Internet service provider. The text and other material on such Web Sites are the opinion of the specific author and are not ClearBearing’s statements of advice, opinion or information.
- You agree to indemnify, defend and hold ClearBearing and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third-party claim, action, dispute or demand related to your use of ClearBearing’s Services, your violation of any of the provisions of these Terms and Conditions, the Acceptable Use Policy or from your placement or transmission of any materials or content onto ClearBearing’s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to ClearBearing’s equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to ClearBearing’s Services, unless such injury or property damage is caused solely by ClearBearing’s gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
- You may not assign your rights and obligations under this Agreement without the prior written consent of ClearBearing, which may be withheld in ClearBearing’s sole discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of ClearBearing to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by ClearBearing of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, these terms and conditions must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of these terms and conditions is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of these terms and conditions. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. These terms and conditions shall be governed by the laws of the State of Vermont, without regard to principles of conflicts of laws. Any suit or action arising out of these terms and conditions shall be brought in federal or state courts located in Chittenden County, State of Vermont.
- These Terms and Conditions supersede all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. ClearBearing reserves the right to change rates and otherwise modify the Terms and Conditions by notifying you 30 days in advance of the effective date of change. Customers who prepay for services in advance shall not be charged higher rates until after the original period covered by the funds advanced.
- Use of ClearBearing Dedicated Server constitutes acceptance of these Terms and Conditions.