TMS Enterprises, Inc. Terms & Conditions Agreement

TMS Enterprises, Inc. ("TMS Enterprises") is the leading comprehensive hosting solutions provider to middle market companies. This Services Agreement ("Agreement") governs your purchase and use, in any manner, of all services provided by TMS Enterprises and any of its affiliates (the "Services").

You must accept the terms of this Agreement in order to use the Services.

NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.

1.         Term and Payment for Services

1.1.      Term   This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide TMS Enterprises with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term. You must provide TMS Enterprises with your notice of termination by clicking on the "Cancel Service" button located on the Site or as otherwise provided by this Agreement. Upon clicking on the "Cancel Service" button, you will be asked to provide TMS Enterprises with sufficient customer identification information so that TMS Enterprises may properly identify you and your account. Any notice of termination will be effective following thirty (30) days after TMS Enterprises' receipt thereof.

1.2.      Termination Policy   If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) TMS Enterprises will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of TMS Enterprises' standard monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. Notwithstanding the foregoing, if you terminate your receipt of Shared Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any set-up fees. Your termination request or notice must be submitted to TMS Enterprises in the manner described in Section 1.1. TMS Enterprises may terminate this Agreement at any time and for any reason by providing to you written notice thirty (30) days prior to the date of termination. If TMS Enterprises terminates this Agreement, TMS Enterprises will refund to you the pro-rata portion of pre-paid fees attributable to Services (excluding set-up fees) not yet rendered as of the termination date unless otherwise expressly provided in this Agreement.

1.3       Default and Cure   In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

1.4.      Charges   You agree to pay for all charges attributable to your use of the Services at the then current TMS Enterprises prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on TMS Enterprises's net income.

1.5.      Payment   All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card, or receive an invoice and submit subsequent payment. If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize TMS Enterprises to charge your credit or debit card to pay for any charges that may apply to your account. You agree that TMS Enterprises may accumulate any supplemental charges, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $20 and then charge your account. You must notify TMS Enterprises of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit TMS Enterprises from charging your account. If you choose to be invoiced upon registration for Services, TMS Enterprises will invoice you for the Services applicable to the period for which you have registered for the Services. TMS Enterprises may also create periodic invoices for any applicable Supplemental Charges associated with your use of the Services. TMS Enterprises will send you a statement reflecting the accumulated invoices. You agree to pay to TMS Enterprises the amount indicated in each invoice by the due date reflected on that invoice. If you fail to pay any fees and taxes by the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law but at no time less than $15 shall also become payable by you to TMS Enterprises. In addition, your failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and TMS Enterprises may, in addition to any other remedy it may have: (i) suspend its performance of the Services and/or terminate this Agreement; and/or (ii) take possession and ownership of any of your property (including any and all intellectual property) in TMS Enterprises' possession at the time of such non-payment and liquidate such property in any reasonable manner in partial or full satisfaction of any unpaid amounts. You agree to sign any documents to facilitate such a transfer of your property and, in the event that TMS Enterprises is unable for any reason to secure your signature to any document required for such transfer, you hereby irrevocably designate and appoint TMS Enterprises and its authorized officers and agents as your agent and attorney-in-fact to act on your behalf to execute such documents. Any such suspension or termination of the Services would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges are considered valid unless disputed in writing with sixty(60) days of the billing date. Adjustments will not be made for charges that are over 60 days old. Delinquent accounts may be suspended or cancelled at TMS Enterprises's sole discretion; however charges will continue to accrue until the account is cancelled.

2.         Use of Services

2.1.      Applicable Use Policy   The TMS Enterprises Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on TMS Enterprises' Web site (or such other location as TMS Enterprises may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. TMS ENTERPRISES RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.

2.2.      Material and Product Requirements   Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on TMS Enterprises' equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by TMS Enterprises. TMS Enterprises will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", TMS Enterprises has the option at any time to reject this material. TMS Enterprises will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of TMS Enterprises. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not TMS Enterprises' responsibility to provide this knowledge or customer support outside of the Services agreed to by you and TMS Enterprises.

2.3.      Bandwidth and Storage Usage   You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.

3.         Enforcement

3.1.      Investigation of Violations   TMS Enterprises may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. TMS Enterprises will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

3.2.      Actions   TMS Enterprises reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, TMS Enterprises may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on TMS Enterprises' systems, and/or (d) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by TMS Enterprises which, in TMS Enterprises' sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes TMS Enterprises to civil or criminal liability or public ridicule. It is TMS Enterprises's policy to terminate repeat infringers. TMS Enterprises' right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If TMS Enterprises takes corrective action due to such possible violation, TMS Enterprises shall not be obligated to refund to you any fees paid in advance of such corrective action.

3.3.      Disclosure Rights   To comply with applicable laws and lawful governmental requests, to protect TMS Enterprises' systems and customers, or to ensure the integrity and operation of TMS Enterprises's business and systems, TMS Enterprises may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on TMS Enterprises' servers and systems. TMS Enterprises also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

4.         Intellectual Property Rights

4.1.      Your License Grant to TMS Enterprises   You hereby grant to TMS Enterprises a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to TMS Enterprises a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

4.2.      TMS Enterprises Materials and Intellectual Property   All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by TMS Enterprises or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by TMS Enterprises to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of TMS Enterprises or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by TMS Enterprises during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

4.3.      Trademarks   You hereby grant to TMS Enterprises a limited right to use your trademarks, if any, for the limited purpose of permitting TMS Enterprises to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.

5.         Warranty; Warranty Disclaimer

5.1.      Customer and/or Third Party Acts   TMS Enterprises is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, TMS Enterprises is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond TMS Enterprises' reasonable control.

5.2.      No Express or Implied Warranty   ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY TMS ENTERPRISES UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT TMS ENTERPRISES EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH TMS ENTERPRISES' COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. TMS ENTERPRISES DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TMS ENTERPRISES DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

5.3       Your Warranties and Representations to TMS Enterprises   You warrant, represent, and covenant to TMS Enterprises that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

6.         Limitation and Exclusion of Liability           

6.1.      Limitations   IN NO EVENT SHALL TMS ENTERPRISES HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO TMS ENTERPRISES, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. TMS ENTERPRISES SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF TMS ENTERPRISES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF TMS ENTERPRISES TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO TMS ENTERPRISES BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY TMS ENTERPRISES UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE TMS ENTERPRISES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

6.2.      Interruption of Service   You hereby acknowledge and agree that TMS Enterprises will not be liable for any temporary delay, outages or interruptions of the Services. Further, TMS Enterprises shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

6.3.      Maintenance   You hereby acknowledge and agree that TMS Enterprises reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. TMS Enterprises will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.

7.         Indemnification   You will defend, indemnify and hold harmless TMS Enterprises and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by TMS Enterprises; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).

8.         Miscellaneous

8.1       Confidentiality   The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.

8.2.      Notices   All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.

8.3.      Choice of Law and Forum   THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN TEXAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS. 

8.4.      Entire Agreement   This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.

8.5.      No Fiduciary Relationship; No Third‑Party Beneficiaries   TMS Enterprises is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

8.6.      Assignments   You may not transfer or assign your rights, duties, or obligations under this Agreement without TMS Enterprises' prior written consent. TMS Enterprises may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.

8.7.      No Waiver   TMS Enterprises' failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of TMS Enterprises' right to subsequently enforce such provision or any other provisions under this Agreement.

8.8.      Severability   If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.9.      Survival   All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.