RackWizards

RackWizards Terms & Conditions

RACK WIZARDS’ TERMS OF SERVICES AND ACCEPTABLE USE POLICY (TOS)

Customer understands and agrees to the following Terms and Conditions:

By purchasing Services, Customer understands, acknowledges and agrees to be bound by all the Terms and Conditions of this Rack Wizards’ Terms of Services and Acceptable Use Policy and any and all terms, conditions or policies that Rack Wizards may establish and post on Rack Wizards’ website from time to time. Customer understands and agrees that by creating, using, or otherwise engaging in business with Rack Wizards, that Customer has fully read, fully understands and agrees to these Terms and Conditions. The Customer understands that the Terms and Conditions in this TOS are legally binding.

Rack Wizards reserves the right to modify its network and facilities used to provide Services for purposes including, but not limited to, accommodating evolving technology, increased network demand, and providing enhanced Services.

1. Pricing and Payment Terms

Customer agrees to and will pay Rack Wizards for Services provided under the Terms and Conditions of this TOS on time.

A. Pricing Terms

Pricing terms under this TOS are found on the Rack Wizards’ website and Invoices that will be sent to Customer monthly (“monthly invoices”).

Customer agrees that any Federal, State or Local Taxes applicable shall be added to each monthly invoice for Services rendered under this TOS. Customer agrees that Customer shall pay any and all such taxes unless a valid exemption certificate is furnished to Rack Wizards for the state of use.

Any and all applicable fees, including but not limited to surcharges, overage charges, one time fees, upgrade fees, promotional offers, special offers, additional service charges, termination fees, penalties, and service credits associated with Services provided pursuant to this TOS will be reflected within monthly invoices and are additional charges/fees not reflected within this TOS.

+From time to time it may be necessary to make adjustments in the fees and surcharges charged for Services in order to cover certain changing costs, including but not limited to power, incurred by Rack Wizards in providing Services. Such adjustments to cover changing costs will be reflected within the monthly invoices provided to Customer for Services, and Customer agree to pay the fees, taxes, and surcharges for Services, as adjusted to cover changing costs.

B. Payment Terms

Customer understands and agrees to abide by the following payment terms:

Fees for Services plus applicable taxes and additional charges will be listed in the monthly invoices. The Customer will be invoiced monthly and payment will become due and payable on the first (1st) day of each month for that month's Services. The first (1st) month will be invoiced in advance prior to commencement of Services. If Services commences mid-month, a prorated amount will be invoiced. The Services will be suspended if payment is not received within five (5) days following date due and a late fee of one percent (1%) per day on the outstanding balance will be assessed. Customer agrees that Rack Wizards will not be liable for any costs, losses and/or damages caused by suspension of Services. Once payment is received by Rack Wizards, suspended Services will resume as normal. Repeat late payments and overdue invoice shall be dealt with in accordance with Section 3 of this TOS.

Payments will be made by check or money order made payable to Rack Wizards, Inc. If Customer’s check is returned by the bank for insufficient funds, uncollected funds, stop payment, account closure, or for any other reason, Customer will incur a penalty charge of thirty-five dollars ($35.00) per returned check plus additional late fees as reflected in this Section of this TOS.

Customer agrees to pay a late fee of one percent (1%) per day of the outstanding balance until payment is made in full.

C. Overage Charges

Overage charges are defined as usage of Services provided by Rack Wizards to Customer in excess of the allocated limitation. Overage charges are charged for Storage Area Networks (SAN), Backup, Bandwidth and Administrative services time used in excess of the amount allocated to Customer account.

Service allocations/limitations and Overage rates are listed on the Rack Wizards’ website and in monthly invoices.

Customer agrees to pay the Overage charges for Services upon receipt of monthly invoices.

Overage charges can be avoided by subscribing to a higher Services plan.

D. Promotional and Special Offers

From time to time, Rack Wizards may offer promotional or special offers as sales incentives. These offers may be comprised of discounts, free time, free services, discounted services, trial offer periods and other types of offers. Such offers cannot be combined with any other offers unless otherwise stated and are one-time use offers. One offer per client only. Offers are valid only where they are permitted by law. Offers are void where prohibited. Some offers require Customer to contact Rack Wizards prior to the expiration of the trial period in order to avoid being re-billed. Offers which provide a discounted monthly rate for a specified period of time will reset automatically to the full monthly rate once the promotional period has expired and Customer agrees to pay, in full, the full monthly rate, unless Customer cancels Promotional or Special Offer Services in advance.

Offers purchased by Customer will be reflected within monthly invoices and are non-refundable.

E. Payment Disputes

Customer agrees to first contact Rack Wizards prior to contacting Customer’s bank or credit card company to dispute any charges. Customer agrees and will submit all disputes charges in writing within one (1) month of the disputed monthly invoice to Rack Wizards Billing Department. If Customer does not submit disputed charges in writing within one (1) month of the disputed monthly invoice, Customer waives any and all remedies and will have to pay in full the outstanding balance on time.

Rack Wizards reserves the right to refer or to sell Customer account to third (3rd) party collection agency and/or to take legal action against Customer.

F. Customer Credits

Rack Wizards guarantees that Networking and Connectivity Services will be available 99.99% of the time.

Uptime is defined as the amount of time Services are available, as measured solely and only by Rack Wizards' Internal Monitoring Systems. Downtime is defined as the amount of time Services are unavailable, as measured solely and only by Rack Wizards’ Internal Monitoring Systems.

Downtime does not include the following and Customer agrees that no Credits will be given for:

• Emergency maintenance,
• Scheduled maintenance,
• System upgrades,
• Domain name system (DNS) problems outside of Rack Wizards' control,
• Issues with FTP, POP, IMAP, or SMTP Customer access,
• Acts or omissions by Customer or any of Customer employees, agents, or users resulting in Downtime,
• Any negligence, willful misconduct, or use of Services in breach of this TOS,
• Problems with Customer/users' web browsers, DNS, or other caching that might make it appear Services are unavailable even though others can still access the Rack Wizards’ Servers,
• Events of Force Majeure, and/or
• Interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third (3rd)party services, failure of third (3rd)party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Services.

In the event of Downtime, Rack Wizards will Credit Customer account in an amount as determined in the Chart below, reflecting Credit Percentages of the monthly fees paid by Customer to Rack Wizards for Services (Credit Percentage calculations shall not include domain name registration, software licenses, IP address charges, set up fees, shipping and handling, SSL certificate fees, labor charges, and/or other services which are unrelated to Uptime):

100% will result in a credit of: 0%
99.1% to 99.9% will result in a credit of: 5%
98% to 99% will result in a credit of: 10%
95% to 97.9% will result in a credit of: 25%
90% to 94.9% will result in a credit of: 50%
89% or below will result in a credit of: 100%

To receive a Credit, Customer must make a request in writing and the request must be received by Rack Wizards within ten (10) business days of the incident of Downtime. Each written request for a Credit must include the dates and times of the Downtime, the name and IP address of the Server(s) which experienced the Downtime. If the Downtime incident is confirmed by Rack Wizards, Credit will be applied to Customer account on the next monthly invoice following the Downtime incident. The total amount credited to Customer in a particular month shall not exceed the total amount of fees paid by Customer for such month for the affected Services. Credits are exclusive of any applicable taxes charged to Customer or collected by Rack Wizards and are Customer sole and exclusive remedy with respect to any Downtime.

Credits are reflected within monthly invoices. Customer agrees that Credits are the only remedy for Downtime. Rack Wizards is not responsible or liable for any loss and/or damages caused by Downtime.

2. Ticketing System

Customer agrees that when Customer has an issue, Customer will use Rack Wizards’ Trouble Shooting Ticketing System to resolve the issue. Customer agrees that the sole remedy for Trouble Shooting issues is Credits in Accordance with Section 1 of this TOS.

Rack Wizards will respond to Customer’s Trouble Shooting Tickets with best business efforts during and after normal business hours and on public holidays. Trouble Shooting Tickets requested by Customer must be in writing.

3. Termination

Rack Wizards reserves the right to terminate this TOS effective immediately and without notice upon any breach by Customer of this TOS.

In the event of termination of Services for any reason, Customer must pay Rack Wizards a penalty fee of one (1) month’s Service charge plus fees, taxes, moneys, penalties, and any and all other fees owed for Services rendered and Equipment purchased.

In the event of termination of Services for any reason, Rack Wizards shall have no obligation to refund any fees paid in advance by Customer. In the event of termination of Services for any reason, Rack Wizards shall have no responsibilities, no liabilities, and no obligations to Customer. In the event of termination of Services for any Reason, Rack Wizards shall not be responsible or liable for any damages to Customer caused by termination of this TOS.

Upon termination of Services for any reason, Rack Wizards also reserves the right to refer and/or sell Customer’s account to a third (3rd) party collection agency and/or take legal action against Customer. Customer agrees to pay any and all collection fees, taxes, charges and legal fees Rack Wizards may incur in addition to the outstanding balance owed to Rack Wizards.

A. Termination due to Non-Payment

Rack Wizards reserves the right, in Rack Wizards sole and absolute discretion, to terminate Services for non-payment by Customer and/or for repeatedly overdue and/or late payments by Customer. If Customer does not pay monthly invoices by the first (1st) day of each month, Rack Wizards reserves the right to terminate Services entirely and reformat Customer’s server(s).

B. Termination of Services by Customer

Customer must request termination of Services in writing. Rack Wizards cannot schedule termination for a specific time or date. Upon receipt of a termination request, Rack Wizards will terminate Services entirely and reformat Customer’s server(s). Rack Wizards shall not issue pro-rated refunds for termination requests received prior to the end a monthly billing cycle.

C. No Money Back Guarantee

Rack Wizards does not offer a refund-based money back guarantee of any kind.

4. License to Host

Customer grants to Rack Wizards a non-exclusive, royalty-free, worldwide right and license during the term of the contractual relationship to do, including but not limited to, the following to the extent necessary to provide Services pursuant to this TOS:

A. Digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by Customer; and

B. Make archival or backup copies of content uploaded by Customer to the Rack Wizards’ Servers. Rack Wizards shall have the right, but not the obligation, to make backup copies of the data uploaded by Customer to the Rack Wizards’ Servers. Customer is solely responsible for any of Customer’s content residing on Rack Wizards' Servers and for the any and all backup.

5. Storage and Security

At all times, Customer bears the full risk of loss of any content and software Customer places on the Rack Wizards Servers. Customer is entirely responsible for maintaining the confidentiality of Customer password(s) and account information. Customer acknowledge and agrees that Customer is solely responsible for any and all acts, omissions and use incurred with Customer account(s) and/or password(s) and/or in connection with the Server or any of the content displayed, linked, transmitted through or stored on the Server.

Rack Wizards shall have no obligation to provide management or security services unless Customer specifically contracts for security services. If any technology specifically associated with Customer account(s) requires updating, Customer must make a request for such update through Rack Wizards' Ticketing System in accordance with Section 2 of this TOS.

Customer shall be solely responsible for undertaking measures to prevent any loss or damage to Customer content; maintain independent archival and backup copies of Customer content; and ensure the security, confidentiality and integrity of Customer content transmitted through or stored on Rack Wizards Servers.

Rack Wizards shall have no responsibility, no liability, and no obligation to Customer or any other entity or person for loss, damage or destruction of any of Customer content, software, or other information stored on Rack Wizards’ Serves.

Customer is solely responsible and liable for any and all storage and security of Customer content, software, and other information.

6. Tortious Conduct

Any abuse towards any Rack Wizards’ employees will not be tolerated. Customer is expected to request and respond to support and other issues in a professional manner, when emailing, calling or submitting online tickets to Rack Wizards. Any cursing, yelling, or further intentional disruptive behavior aimed at Rack Wizards and/or Rack Wizards’ employees shall be considered a violation of this TOS.

Any threat; whether orally, verbally, in written, via E-mail, via Live Chat, delivered by second (2nd) parties or delivered in any other way, and directed towards Rack Wizards or any of Rack Wizards’ owners, employees, affiliates, partners, staff, contractors, sub-contractors, facilities, offices, or techs shall be interpreted as a material breach of this TOS. Threats of physical violence will be directed to the proper authorities.

Customer agrees that no refunds shall be provided by Rack Wizards when this Tortuous Conduct clause is violated and necessitates the termination of a Customer account or Services. Rack Wizards reserves the right to terminate Customer’s Services due to Tortuous Conduct.

Termination pursuant to this Tortuous Conduct clause shall be in accordance with Section 3 of this TOS.

7. Customer’s Obligations

Customer agrees and Customer shall not use Services to:

• Upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
• administer IRC;
• commit unlawful acts or omissions;
• Hack into a network, including government networks;
• Harm minors/children in any way;
• Impersonate any person or entity;
• "Stalk" or otherwise harass another person;
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through Services;
• Upload, post, email, transmit or otherwise make available any content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships;
• Upload, post, email, transmit or otherwise make available any content of insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;
• Upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," or "pyramid schemes";
• Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• Interfere with or disrupt Services or Servers or networks connected to Services, or disobey any requirements, procedures, policies or regulations of networks connected to Service;
• Intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law;
• Provide material support or resources or to conceal or disguise the nature, location, source, or ownership of material support or resources to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act;
• Violation of the Digital Millennium Copyright Act; and/or
• Collect or store personal data about other users in connection with the prohibited conduct and activities set forth in this Section of this TOS.

Customer is solely and entirely liable and responsible for any and all losses, damages, legal actions, criminal charges, and/or any other consequences for acts, omissions, and/or violations of this Section of this TOS. Customer agrees and shall Rack Wizards and Rack Wizards owners, employees, agents, and techs harmless for any and all violations/breach of this Section of this TOS.

If Customer violates/breaches this Section of the TOS, Rack Wizards reserves the right to Terminate Customer’s Services, with or without warning, in accordance with this Section and Section 3 of this TOS. If Customer’s Service is terminated due to violation/breach of this Section of this TOS, then Customer forfeits all fees paid, including pre-paid fees and unused time and all fees become non-refundable.

This Section of this TOS will survive indefinitely after this TOS/contractual relationship is terminated in accordance with this Section and Section 3 of this TOS.

8. Disclaimer and Warranty

Customer acknowledges and agrees that Rack Wizards exercises no control over, and shall have no responsibility or liability for, the content of the information passing through the host computers, network hubs and points of presence or the Internet.

ANY AND ALL SERVICES AND EQUIPMENT PROVIDED ARE PROVIDED “AS IS.” NEITHER RACK WIZARDS, RACK WIZARDS’ OWNERS, AFFILIATES, EMPLOYEES, AGENTS, TECHS, ASSIGNS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS/VENDORS, LICENSORS OR THE LIKE MAKE ANY WARRANTIES TO CUSTOMER WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, BY WAY OF EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT RACK WIZARDS PROVIDES, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. NEITHER RACK WIZARDS, RACK WIZARDS’ OWNERS, AFFILIATES, EMPLOYEES, AGENTS, TECHS, ASSIGNS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS/VENDORS, LICENSORS OR THE LIKE WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. RACK WIZARDS IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER CLIENTELE VIA THE SERVICES PROVIDED BY RACK WIZARDS.

9. Release of Liability

CUSTOMER AGREES THAT RACK WIZARDS, RACK WIZARDS’ OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, TECHS OR ASSIGNS HAVE NO RESPONSIBILITY, OBLIGATION, AND/OR LIABILITY FOR INCLUDING BUT NOT LIMITED TO ANY AND ALL ACTS, OMISSIONS, DAMAGES, COSTS ASSOCIATED DIRECTLY OR INDIRECTLY WITH THIS AGREEMENT AND WITH ANY AND ALL DEALINGS WITH RACK WIZARDS. CUSTOMER AGREES THAT CUSTOMER IS SOLEY AND FULLY RESPONSIBLE AND LIABLE FOR INCLUDING BUT NOT LIMITED TO ANY AND ALL ACTS, OMISSIONS, DAMAGES, COSTS ASSOCIATED DIRECTLY OR INDIRECTLY WITH THIS AGREEMENT AND WITH ANY AND ALL DEALINGS WITH RACK WIZARDS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS TOS, IN NO EVENT SHALL RACK WIZARDS, ITS OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, TECHS OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO, BY WAY OF EXAMPLE, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, WHETHER SUCH CLAIM IS CHOATE OR INCHOATE, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, EVEN IF RACK WIZARDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL RACK WIZARDS, RACK WIZARDS’ OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, TECHS OR ASSIGNS BE LIABLE FOR CONTENT THAT IS TRANSMITTED BY CUSTOMER, CUSTOMER’S CLIENTS, CUSTOMER VENDORS, OR THIRD PARTIES OVER OR THROUGH RACK WIZARDS’ NETWORKS OR SYSTEMS. IN NO EVENT SHALL RACK WIZARDS’, RACK WIZARDS’ OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, TECHS, OR ASSIGNS BE LIABLE FOR ANY DEFECT, ERROR, INTERRUPTION, DELAY, OR ATTENUATION OF SERVICES CAUSED BY OR RESULTING FROM ANY SERVICES AND EQUIPMENT USED BY CUSTOMER. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED BY THIS TOS, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID PURSUANT TO THIS TOS ARE LIQUIDATED, CUSTOMER ACKNOWLEDGES THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, ANDTHE LIQUIDATED DAMAGES CALCULATED HERE UNDER CONSTITUTE A REASONBALE APPROXIMATION OF THE HARM OR LOSS. CUSTOMER CONFIRMS THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES SET FORTH IN THIS TOS SATISFIES THE ESSENTIAL PURPOSES OF SUCH DAMAGES.

10. Insurance

RACK WIZARDS SHALL NOT PROVIDE ANY TYPE OF INSURANCE FOR CUSTOMER. ITS IS CUSTOMER’S SOLE RESPONSIBILITY TO PROVIDE INSURANCE FOR CUSTOMER.

11. Rack Wizards Utilization of Third Party Services

Rack Wizards reserves the right, and Customer agree to pay for, services of third (3rd) party consultants hired by Rack Wizards in Rack Wizards’ sole discretion to assist Rack Wizards in providing Services to Customer. Fees for services of third (3rd) parties retained by Rack Wizards will be charged to Customer in monthly invoices covering the month during which the third (3rd)party services were utilized by Rack Wizards for Customer.

Customer agrees and shall pay for services of third (3rd) party provided under this TOS. Third (3rd) party service fees will be listed in monthly invoices.

12. Unsolicited E-mail Policy

"Unsolicited E-mail Complaint" is defined as an occurrence of a third (3rd) party complaint regarding a specific E-mail communication message sent by Customer. "Unsolicited E-mail Incident" is defined as an occurrence of a single E-mail message which may have been sent to multiple E-mail addresses. An Unsolicited E-mail Incident may contain numerous complaints and may contain complaints received up to twenty-four (24) hours after the first (1st) Unsolicited E-mail Incident. After twenty-four (24) hours, a new Unsolicited E-mail Incident will be opened. "IP Black Listing" is defined as an occurrence when a third (3rd) party black listing service determines that a Rack Wizards issued IP address is a frequent source of Unsolicited E-mail. Black Listings result in the IP address, or multiple IP addresses in the same IP range, are unable to send E-mail to certain third (3rd) parties.

Rack Wizards complies with the United States CAN-SPAM Act ("Act"). The Act states that commercial E-mail must be solicited, an effective, visible and clearly defined un-subscription process be in place, that every E-mail message sent be sent from a valid address, without any form of IP or source spoofing, that every E-mail message sent contain the physical contact information of the sender, that every recipient of such E-mail messages has requested to receive such E-mails and that the messages and method in which they were sent comply with the other provisions of the Act. Rack Wizards considers any attempt to send Unsolicited E-mail Messages or other forms of Spam E-mail, including but not limited to Spamvertising other websites or services or products, to be a violation/breach of this TOS.

Customer agrees that for each Unsolicited E-mail Incident, Rack Wizards will assess a penalty of and Customer will pay $100.00 per verified Unsolicited E-mail Incident and a penalty of $500.00 for the first (1st) instance of IP Black Listing and $1,000.00 for the second (2nd) instance of IP Black Listing, and an additional penalty of $500.00 per each instance of IP Black Listing after the second (2nd) instance of IP Black Listing. Penalties will be reflected in monthly invoices and Customer agrees to pay Penalties.

If Customer violates/breaches this Section of the TOS, Rack Wizards reserves the right to Terminate Customer’s Services, with or without warning, in accordance with this Section and Section 3 of this TOS. If Customer service is terminated due to violation/breach of this Section of this TOS, then Customer forfeits all fees paid, including pre-paid fees and unused time and all fees become non-refundable.

Customer agrees that in the event of Termination in accordance with this Section, Customer shall not be absolved or nullify Unsolicited E-mail Penalty payments Customer may owe or may accumulate additional Penalties based on complaints received after Customer Termination. This Section of this TOS will survive for a period of one (1) year after this TOS/contractual relationship is terminated in accordance with this Section and Section 3 of this TOS.

13. THE TERMS IN THIS SECTION APPLY TO RESELLERS OF RACK WIZARDS’ SERVICES THROUGH RACK WIZARDS (RESELLER PROGRAM)

In order to participate in Rack Wizards’ Reseller Program (“Reseller Program”), Customer must be preapproved in writing by Rack Wizards and complete the written Registration Process. Customer is granted the limited and non-exclusive right as provided in this Section to resell Services. This limited and non-exclusive right is conditioned upon Customer’s full compliance with all applicable user agreements and Rack Wizards’ policies including but not limited to Rack Wizards’ Terms of Service and Acceptable Use Policy, policies posted on Rack Wizards’ website, and is also conditioned upon compliance with all applicable user agreements by the Customer’s customers/clients to whom Customer resells Rack Wizards’ Services (“Reseller Customers”). Customers who participate in the Reseller Program are independent contractors.

The limited and non-exclusive rights granted to Customer to resell Services are non-transferable and cannot be sold separately or in conjunction with the sale of an existing site or business without Rack Wizards’ prior written consent.

Rack Wizards will provide Services to Customer under the Reseller Program at the prices and rates listed in Reseller Price Schedule. The rates applicable to Customer will vary depending on various factors, including but not limited to, volume of servers that Customer currently maintain with Rack Wizards, volume of value added services that Customer currently maintain with Rack Wizards, special written offers provided by an Account Executive or other authorized Rack Wizards employee, and custom pricing for Servers and Services (“Overrides”). Pricing is updated every night automatically based on the above Override factors.

Customer agrees to indemnify, defend and hold Rack Wizards harmless against any and all claims, damages and liability occasioned by any conduct of Customer or Customer Reseller Customers, including any and all claims arising from content uploaded or stored by any Reseller Customer. Customer agrees to indemnify Rack Wizards against transactions processed by Rack Wizards by or on Customer behalf that are fraudulent in nature.

Customer agrees that Customer shall provide assistance to Rack Wizards in connection with any investigation, demand, or notice provided to Rack Wizards pertaining to any conduct or content of any Reseller Customer made by any governmental agency or third (3rd) party. Such assistance shall include but not be limited to investigation and necessary communication in connection with “Takedown Notices” issued to Rack Wizards pursuant to the Digital Millennium Copyright Act. Customer agrees that Customer will cooperate with Rack Wizards in connection with all reasonable requests made by Rack Wizards for Customer to preserve all information and content that may be the subject of any investigation or third (3rd) party claim. Rack Wizards shall not be responsible or liable for any conduct or content of Reseller Customers. At all times Customer must provide Rack Wizards with a written list and contact information of Customer’s Reseller Customers for the purpose of cooperation with any investigations that may be executed upon Customer or Customer’s Reseller Customers activities, and to maintain Customer active status as a Reseller with Rack Wizards.

In the event of a default or breach by Customer of any provision of this TOS or of any of Rack Wizards’ policies, or in the event Customer abandon, for any reason, Customer obligation to provide Services to any of Customer’s Reseller Customers, Rack Wizards shall be entitled to do any of the following in connection with Customer Reseller Accounts:

• Directly contact Reseller Customers
• Bill Customer’s Reseller Customers directly for Services
• Collect all amounts due directly from Customer and/or such Reseller Customers
• Terminate Customer Account, including Customer status as a participant in the Reseller Program, in accordance with Section 3 of this TOS.

In the event of default, breach or abandonment by Customer as provided in this Section, Customer agrees to provide to Rack Wizards immediately with all billing and contact information for each of Customer’s Reseller Customers so that Rack Wizards may exercise the rights set forth in this Section.

Customer shall be solely responsible for providing all Customer Service to Customer’s Reseller Customers. In the event Customer elect to have Rack Wizards handle a particular customer service incident, Customer grant the authority to Rack Wizards to handle the particular situation exercising Rack Wizards’ sole discretion, and agree to hold Rack Wizards harmless for any claims made by the Reseller Customer in connection with Rack Wizards’ handling of the Customer Service request. Rack Wizards reserves the right to charge Customer a fee for each incident Customer elects Rack Wizards to handle.

In no event will Customer undertake any obligation to any Reseller Customer which would grant or purport to grant any rights not expressly provided to Customer under this TOS.

No employee, agent, tech or other representative of Customer and/or Reseller Customers has any authority to bind the Rack Wizards with respect to any statement, representation, warranty, covenant, guarantee, or other expression.

Rack Wizards reserves the right to terminate Customer’s participation in Reselller Program immediately without cause and without notice in accordance with Section 3 of this TOS.

14. Force Majeure

Rack Wizards shall not be liable for any interruption, downtime, default, failure, or delay in Services pursuant to this TOS if and to the extent such interruption, downtime, default, failure, or delay is caused, directly or indirectly, by a Force Majeure event.

Customer agrees that Customer will not receive any Credits or Refunds for any and all Force Majeure events.

15. Intellectual Property

Customer warrants that Customer use of Services shall not infringe the intellectual property or other proprietary rights of Rack Wizards or any third (3rd) party. Customer further agrees that all rights, titles and interest in any and all technology, including the software that is part of or provided with Services and any trademarks or service marks of Rack Wizards is owned solely by Rack Wizards and/or its licensors. Customer shall have no right, title, claims or interest in or to Rack Wizards' intellectual property.

Customer shall not copy, modify or translate any Rack Wizards intellectual property or related documentation, or decompile, disassemble, or reverse engineer same, or grant any other person or entity the right to do so. Customer is not authorized to distribute or to authorize others to distribute Rack Wizards intellectual property in any manner.

Rack Wizards respects the intellectual property of others, and we ask Customer to do the same. Rack Wizards may, in appropriate circumstances and at its sole discretion terminate the Customer account when Customer violates/breaches this Section in accordance with Section 3 of this TOS.

16. Governing Law

This TOS shall be governed by the laws of the State of Florida in which Rack Wizards is incorporated and located. In any action arising pursuant this TOS, Rack Wizards and Customer consent to any Court of competent jurisdiction within Miami-Dade County.

In any action pursuant to this TOS, it is within the Court’s sole and absolute discretion whether or not the losing party shall pay the successful party a reasonable sum for attorneys' fees and costs.

17. Waiver

Any failure or delay in Rack Wizards’ exercising any right, remedy, or power under this TOS shall not operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity.

Waiver by Rack Wizards of the time for performance of any act or condition pursuant to this TOS shall not constitute a waiver of the act or condition itself.

18. Assignment and Delegation

Customer may not assign rights or interests, or delegate duties under this TOS without the prior written consent of Rack Wizards. Any assignment or delegation violating this provision shall be void. Customer remains fully liable under this TOS even in the event of assignment or delegation.

19. TOS and Severability

This TOS plus policies on Rack Wizards’ website, and monthly invoices constitutes the complete and exclusive TOS between Rack Wizards and Customer with regard to the subject matter of this TOS. This TOS supersedes and replaces any and all prior or contemporaneous written and oral discussions, negotiations, understandings and TOSs with regard to the subject matter of this TOS.

This TOS shall be binding upon and inure to the benefit of Customer, Rack Wizards and their respective successors, and assigns. If any Section of this TOS shall be held by a Court of Competent Jurisdiction to be invalid, unenforceable, or void, the remainder of this TOS shall remain in full force and effect.

20. Insolvency

If the Customer becomes or declares Insolvency/Bankruptcy, the Customer’s grant to the Service Provider to the maximum extent permitted by law, a first (1st) priority security interest/claim in any and all Customer’s property.

In the event of default, insolvency, or bankruptcy, this TOS will Termination in accordance with Section 3 of this TOS.