1. OVERVIEW
This Agreement (“Agreement”) sets forth the terms and conditions of your use of the Thoplam platform services (the “Services”), and represents the entire agreement between you and Thoplam concerning the subject matter hereof and is made effective as of the date of manual or electronic acceptance. Use of the service signifies you are accepting this Agreement and are stating that the information contained within is accurate and has been reviewed by you, the customer. Your acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, and any other agreements or policies that are expressly incorporated herein. The terms “We”, “Us” or “Our” shall refer to Thoplam. The terms “You”, “Your”, “User” or “Customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to the Thoplam Website (www.thoplam.com). Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your contact information current with Thoplam. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
2. DESCRIPTION OF SERVICES
Dedicated Server. If you purchase time on a Dedicated Server, an entire server is reserved exclusively for your usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s computational performance will not be affected by the usage patterns of other customers. You are solely responsible for reviewing the functionality of uploaded applications and data content in the Thoplam hosted location.
3. SERVICE TERMINATION
Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, you may be assigned or re-assigned a different IP address. We do not warrant that you will be able to consistently maintain your given IP address.
Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services. Prior to termination of the Services, you are responsible for moving your applications or server content off our servers. We will not transfer your server content to another provider. If you fail to move your server content off our servers prior to termination, then all such content will be deleted, and we will not be able to provide a copy of such content.
4. YOUR OBLIGATIONS
Justification. You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification.
Abusive Activities. You acknowledge and agree that you may not use our servers as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Cryptocurrency mining is prohibited and we reserve the right to terminate service without warning should such activity occur. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to terminate service without warning should such activity occur. Use of your dedicated server(s) as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your applications temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all applications and servers associated with your account may be removed if one server is in violation of this Agreement. You agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.
Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your applications or server content; (2) maintain independent archival and backup copies of your applications or server content; and (3) ensure the security, confidentiality and integrity of all your applications or server content transmitted through or stored on our servers. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your server. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the contents of your dedicated server.
5. SERVICE UPTIME GUARANTEE
We offer a “Service Uptime Guarantee” of 99.8% of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly fee for that month. The credit may be used only for the purchase of further products and services from us and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) causes beyond our control or that are not reasonably foreseeable; and (4) outages related to the reliability of certain programming environments.
6. REFUNDS
There are no refunds of any payments made.
7. THIRD PARTY SUPPLIERS
“Third-Party” means any hardware, software, or application not developed or owned by Us. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services, unless it is owned by You. We may provide your personal information to third-party providers if it is required to be provided to the Third-Party Software vendors. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law.
You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers). All Third-party suppliers disclaim any and all liability for consequential and other indirect damages and implied warranties, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose. The collective liabilities of Thoplam and its Third-party suppliers are subject to any limitations within this Agreement.
8. LIMITATIONS OF LIABILITY
OTHER THAN FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONSE HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OTHER THAN FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONSE HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
9. INDEMNIFICATION
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim arising out of (i) your use of the Services, its various applications, as well as any third-party services, solutions, or applications, in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (ii) your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your Application and/or Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
10. DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.
