You must read and agree to all terms in this document before using our services. By using or continuing to use Tierra Hosting services, you are automatically agreeing to the terms of this document!
Last Updated: Last modified Monday, 02nd October, 2017 @ 08:00am
THIS AGREEMENT (“Agreement”) is made and effective as of the
date of acceptance, by and between you ("Client") and Tierra Hosting, LLC.
WHEREAS, Tierra Hosting owns, distributes and provides various products and services
for conducting business on the Internet including: billing, shared web hosting, cPanel licensing, and the Tierra Hosting family of
services (i.e. web design, website maintenance, graphic design, content creation, and etcetera) (hereinafter collectively referred to as the "Services").
WHEREAS, Client desires to utilize some or all of the Services to develop,
enhance or maintain Client's business and/or presence on the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. TIERRA HOSTING SERVICES
Tierra Hosting agrees to provide to Client the Services agreed upon between Tierra Hosting and Client as selected by Client in TIERRA's customer database that is
specified at www.tierrahosting.com.
2. PAYMENT AND INVOICING
2.1 In consideration of the performance of the Services, Client shall pay
Tierra Hosting monthly in advance the amount set forth in Tierra Hosting's customer database
as such records are amended from time to time for the Services during the term
of this Agreement.
2.2 Client shall receive a confirmation letter via e-mail at the time Client
contracts for the Services, which shall confirm the fees payable to Tierra Hosting, LLC.
Thereafter, Client shall receive a monthly billing statement for the upcoming
month. The monthly billing statement shall indicate any changes in fees, which
fees shall become effective upon thirty (30) days' notice as set forth
in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting from Client's
use of the Services. Client agrees to pay all fees, bandwidth charges, connect
time charges, surcharges, and other charges incurred by Client and set forth
in the monthly billing statement. Client acknowledges that no refunds will
be given by Tierra Hosting in the event that Client's account is terminated by
Tierra Hosting or Client mid-term. In the event of a breach of security, Client will
remain liable for any unauthorized use of the Services until Client notifies
Tierra Hosting by sending an e-mail with account information to "sales @ tierrahosting.com".
2.4 Current rates for using the Services may be obtained on our web site
at www.tierrahosting.com. Tierra Hosting reserves the right to change fees, surcharges, monthly
membership fees or to institute new fees at any time. In addition, Tierra Hosting may
institute special trial offers, from time to time, that shall be reflected
in the confirmation letter sent to Client upon sign up. If Tierra Hosting does not receive
the full amount of Client's Service account balance within three (3)
days of invoice date, a late charge equal to flat monthly fee of 10% per month or highest amount
allowed by law per month will be added to Client's bill and shall be
due and payable. Again, Client shall also be responsible for all attorney and collection
fees arising from Tierra Hosting's efforts to collect any unpaid balance of Client's
account(s), and Tierra Hosting may terminate Client's account immediately without
further notice to Client.
3. RESPONSIBILITIES AND RIGHTS OF TIERRA HOSTING
3.1 Means of Performance. Tierra Hosting shall provide Client with the Tierra Hosting
hosting services, as described at www.tierrahosting.com hereto. Tierra Hosting has the right
to control and direct the means, manner, and method by which the host services
3.2 Support. Tierra Hosting shall provide a reasonable level of technical support
to Client via email or Web page for the term of this Agreement.
3.3 Other Work. Tierra Hosting has the right to perform and license products
to others during the term of this Agreement. Tierra Hosting may elect to electronically
monitor the host services and may disclose any content or records to satisfy
any law, regulation, or other governmental request or to properly operate host
services and protect its Clients. Tierra Hosting reserves the right to block any site
hosted by Tierra Hosting that contains any content that Tierra Hosting deems in its sole discretion
to be unacceptable or undesirable.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
4.1 Client. Client represents and warrants that (i) Client is at least
eighteen (18) years of age, (ii) Client possesses the legal right and ability
to enter into this Agreement, and (iii) the performance of Client's obligations
and use of the Services by Client, its customers and users, will not violate
any applicable laws, regulations or the rules and regulations or cause a breach
of any agreement with any third parties or unreasonably interfere with other
Tierra Hosting Clients' use of Services. Client assumes all risks related to processing
of transactions related to electronic commerce. Client agrees to provide Tierra Hosting
with accurate, complete and updated information required by the registration
of the Tierra Hosting host service (Client Registration Data), including Client's
legal name, address, telephone number(s), and applicable payment data (e.g.,
credit card number and expiration date). Client agrees to notify Tierra Hosting within
thirty (30) days of any changes in Client's Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the
foregoing warranties, in addition to any other remedies available at law or
in equity, Tierra Hosting will have the right, in its sole discretion, to suspend or
terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for payment of
all costs, fees and expenses assessed by third parties in the course of being
provided Services. Such costs include, but are not limited to, the fees required
to register and maintain domain names, which is governed by a separate agreement
between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the
Services may be governed by separate end user licenses. By using the Services
and the third-party software, Client agrees to be bound by the terms of such
end user licenses regarding the applicable third-party software. Client consents
and authorizes Tierra Hosting to delegate the authorizations Client provides to Tierra Hosting
to its third party service provider(s) as Tierra Hosting deems necessary or desirable
to provide the applicable Services. Client agrees that the terms and conditions
of this Agreement, including any of the other terms, conditions, warranty disclaimers
and liability disclaimers incorporated into this Agreement, inure to the benefit
of such third party service providers and such third party service providers
are deemed to be third party beneficiaries of the Agreement, including any
other terms, conditions, warranty disclaimers and liability disclaimers incorporated
into this Agreement. Client also agrees that all reference to "Tierra Hosting"
within this Agreement and any incorporated terms are also deemed to include,
where applicable, Tierra Hosting's agents, such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client
may not use the Services to send unsolicited advertising, promotional materials,
or other forms of solicitation to the Tierra Hosting clients or other Internet users
unless Client receives the express permission of such individuals. Client may
not use the means of unsolicited advertising to advertise a site hosted on
the Tierra Hosting network. Client may not use the Services to collect or "harvest"
user-names of Tierra Hosting clients or other Internet users without the expressed prior
permission of the member. Tierra Hosting reserves the right to block or filter mass
email solicitations sent from sites hosted on the Tierra Hosting network.
4.6 Management of Site. Client shall be solely responsible for all
content available on or through its site, and shall at all times be subject
to the terms of this Agreement, Tierra Hosting's then-standard Terms of Service
("TOS") and any generally applicable guidelines and service standards
published by Tierra Hosting. Client warrants that its site hosted on the TIERRA network
(i) will conform to the Tierra Hosting TOS attached hereto as Exhibit A; (ii) will not
infringe and will not contain any content that infringes on or violates any
copyright, U.S. patent or any other third-party right; and (iii) will not contain
any content which violates any applicable law, rule or regulation. Tierra Hosting shall
have no obligations with respect to the content available on or through any
site hosted on the Tierra Hosting network, including, but not limited to, any duty to
review or monitor any such content. Tierra Hosting reserves the right to block any site
that violates any of the above-stated terms, or which in Tierra Hosting's sole
discretion, Tierra Hosting deems objectionable or offensive, or otherwise violates a
law or Tierra Hosting policy, or, in the alternative, to terminate this Agreement in
accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services only
for lawful purposes and in accordance with this Agreement. Client will comply
at all times with all applicable laws and regulations and the TOS, as updated
by Tierra Hosting from time to time. The TOS are incorporated herein and made a part
hereof by this reference. Tierra Hosting may change the TOS, with notice, which notice
may be provided by posting such new TOS at the Tierra Hosting Site. Client may request
a current copy of the TOS by sending or faxing a request to Tierra Hosting. Client agrees
that it has received, read and understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work performed
hereunder by Tierra Hosting, is the property of Tierra Hosting, and all title and interest therein shall
vest in Tierra Hosting. To the extent that title to any such works may not, by operation
of law, vest in Tierra Hosting all rights, title and interest therein are hereby irrevocably
assigned to Tierra Hosting. All such materials shall belong exclusively to Tierra Hosting, and
Tierra Hosting shall have the right to obtain and to hold in its own name, copyrights,
trademarks, registrations, or such other protection as may be appropriate to
the subject matter; and any extensions and renewals thereof. Client agrees
to give Tierra Hosting and any person designated by Tierra Hosting such reasonable assistance,
at Tierra Hosting's expense, as is required to perfect the rights defined in this
4.9 Marketing Rights. Client agrees that Tierra Hosting may refer to Client,
or Client's business in Tierra Hosting marketing materials, the TIERRA website,
and communication to Tierra Hosting's current and prospective clients. Client
grants Tierra Hosting a limited license and permission to use any Client trade name
and/or trademark for such, and only for such, purposes.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
5.1 Limitation. In the event that any limited guarantees are provided
by Tierra Hosting, such limited guarantees are null and void if Client fails to follow
Tierra Hosting's TOS and other policies or otherwise breaches this Agreement in
5.2 No Other Warranty. Tierra Hosting does not monitor or exercise control
over the content of the information transmitted through its facilities. Use
of the Services or any information that may be obtained there from is at Client's
own risk. The Services are provided on an "as is" basis, and Client's
use of the Services is at its own risk. Except as provided in the order form(s),
Tierra Hosting does not make, and hereby disclaims, any and all other express and/or
implied warranties, including, but not limited to, warranties of merchantability,
fitness for a particular purpose, non-infringement and title, and any warranties
arising from a course of dealing, usage, or trade practice. Tierra Hosting does not
represent or warrant that the Services will be uninterrupted, error-free, or
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Tierra Hosting does not and cannot control the flow of information to or
from Tierra Hosting's network and other portions of the Internet. Such flow depends
in large part on the performance of the Internet services provided or controlled
by third parties. At times, actions or inactions of such third parties may
impair or disrupt Client's connections to the Internet (or portions thereof).
Tierra Hosting cannot guarantee that such events will not occur. Accordingly, Tierra Hosting
disclaims any and all liability resulting from or related to such events.
Client agrees to indemnify, defend and hold Tierra Hosting and its affiliates, agents,
employees, and licensors (including the third party service providers) harmless
from any and all claim, demand, loss, costs or expense, including attorneys'
fees, made by any person arising out of Client's violation of this Agreement,
State or Federal Securities laws or regulations, or any other person's
rights including but not limited to infringement of any copyright or violation
of any proprietary or privacy right.
Under no circumstances, including but not limited to a negligent act, will
Tierra Hosting or its affiliates, agents, employees, or licensors (including third party
service providers) be liable for any damages of any kind that result from the
use of, or the inability to use, Services, even if any such party has been
advised of the possibility of such damages.
In no event will Tierra Hosting or its third party service providers be liable to
Client or any third Party for any tort, contract or any other liability arising
in connection with the use of the Services, or reliance on any information
or services provided by Tierra Hosting. Tierra Hosting and its third party service providers
will under no circumstances be liable to Client and/or any third party, regardless
of the form of action, for any loss of profits, goodwill, use, data or other
intangible losses, or any direct, indirect, special, consequential, incidental
or punitive damages whatsoever, even if Tierra Hosting or its third party service providers
has been advised of the possibility of such damages, resulting from: (i) the
use of the inability to use the Services; (ii) the timeliness, deletion, misdelivery,
or failure to store any user date, communications or personalization settings;
(iii) the cost of getting substitute goods and services resulting from any
products, data, information or services purchases or obtained or messages received
or transactions entered into, through or from the Services; (iv) statements
or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized
use, performance or non-performance of any third party, even if the third party
has been advised previously of the possibility of such damages; or (vii) any
other matter relating to the Services. Client agrees that Client will not in
any way hold Tierra Hosting responsible for any selection or retention of, or the acts
or omissions of, third parties (including third party service providers) in
connection with the Client Services.
Because some states prohibit the limitation of liability for consequential
or incidental damages, in such states the limitation of liability only with
respect to consequential or incidental damages may not apply to Client, and
the respective liability of Tierra Hosting and its third party service providers, employees,
distributors and agents is limited to the greatest extent allowable under applicable
law in those states.
In the event that a court or arbitration panel, as the case may be, should
hold that the limitations of liability or remedies available as set forth in
this Agreement, or any portions thereof, are unenforceable for any reason,
or that any of Client's remedies under this Agreement fail, then Client
expressly agrees that under no circumstances will the total, aggregate liability
of Tierra Hosting and its third party service providers, employees, distributors, agents
or affiliates, to Client or any party claiming by or through Client for any
cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether
in contract, statute, tort or otherwise.
7.1 Without Cause. This Agreement may be terminated by either party
at any time during any Renewal Term for any or no reason upon either party
giving to the other no less than five (5) days' prior written notice
of termination. No matter which party terminates the Agreement pursuant to
this Section 7.1, any and all payment obligations of Client under this Agreement
for Service(s) provided through the date of termination will immediately become
due, and Client shall be required to prepay for any portion of the Services
that have not been paid for and are to be rendered during such five (5) day
7.2 For Cause. In addition to any other rights it may have under this
Agreement or applicable law, Tierra Hosting may immediately terminate this Agreement
or suspend service, effective without notice, in the event of (i) a default
in payment, or (ii) Client's breach or failure to comply with the TOS
or other policies of Tierra Hosting. Client may terminate this Agreement if Tierra Hosting breaches
any material term or written notice of same. If this Agreement is terminated
by Tierra Hosting under this Section 7.2, all balance of the then current term shall
immediately become due and payable. In addition to the foregoing, Tierra Hosting reserves
the right to prohibit any conduct or to remove any materials or content in
violation of the TOS or which Tierra Hosting believes in its sole discretion to be illegal
or potentially harmful to others or may expose Tierra Hosting to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to
the other for any termination or expiration of any Services of this Agreement
in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration
or termination of the Agreement: Section 4, 5, 6, 7, and 8.
7.5 IP Address. Upon expiration, cancellation or termination of this
Agreement, Client shall relinquish any Internet protocol ("IP")
numbers, address or address blocks assigned to Client by Tierra Hosting or its network
services supplier (but not the URL or top level domain connected therewith).
TIERRA reserves, in its sole discretion, the right to change or remove any and
all such IP numbers, addresses or address blocks.
8.1 Assignment. Client may not assign this Agreement or any of Client's
rights or obligations hereunder without the prior written consent of Tierra Hosting,
and any such attempted assignment shall be void. This Agreement shall be binding
upon the parties' respective successors and permitted assigns.
8.2 Notices. Any notices or communication under this Agreement shall
be in writing and shall be deemed delivered to the party receiving such communication
at the address specified below (1) on the delivery date if delivered personally
to the party, or a representative of the party; (2) one business day after
deposit with a commercial overnight carrier, with written verification of receipt;
(3) five business days after the mailing date, whether or not received, if
sent by US mail, return receipt requested; (4) on the delivery date if transmitted
by confirmed facsimile.
If to Tierra Hosting:
Tierra Hosting, LLC
Tyler, TX 75707 USA
If to Client:
To Client address provided at account set-up.
8.3 Governing Law. This Agreement, and all future agreements Client
may enter into with Tierra Hosting, unless otherwise indicated on such other agreement,
will be governed by the laws of the State of Texas, without regard to
conflicts of law principles thereof. This is the case regardless of whether
you reside or transact business with Tierra Hosting in Texas or elsewhere. Unless
a dispute would be governed by an applicable arbitration clause, Client agrees
to submit to the personal and exclusive jurisdiction of the courts located
within the County of Rusk, Texas. If any part of the Agreement
is unlawful, void or unenforceable, that part will be deemed severable and
will not affect the validity and enforceability of any remaining provisions.
8.4 Modifications. No modifications, amendment, supplement to or waiver
of this Agreement or any exhibit hereunder, or any of their provisions shall
be binding upon the parties hereto unless made in writing and duly signed by
8.5 Waiver. A failure of either party to exercise any right provided
for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of
the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability
of remaining provisions shall be unimpaired.
8.7 Force Majeure. Tierra Hosting and its affiliates, agents, employees, or
licensors (including third party service providers) shall not be liable for
failure to perform any obligation under this Agreement if such failure is caused
by the occurrence of any contingency beyond the reasonable control of such
party, including without limitation, fire, flood, strike, and other industrial
disturbance, failure to transport, accident, ware, riot, insurrection, act
of God or order of governmental agency. Performance shall be resumed as soon
as possible after cessation of such cause. However, if such inability to perform
continues for fifteen (15) days, the other party may terminate this Agreement
without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent, representative, or partner of the other
party. Neither party shall have any right, power or authority to enter into
any agreement for or on behalf of, or incur any obligation or liability of,
or to otherwise bind, the other party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the parties or to impose any liability attributable to such a relationship
upon either party.
8.9 Terms of Services. Client agrees to be bound by Tierra Hosting's
TOS for all Services and products used by Client. The current TOS can be found
on Tierra Hosting's website at http://www.tierrahosting.com/TOS.php. Should Client disagree with any
updates to Tierra Hosting's TOS, it is Client's responsibility to notify
Tierra Hosting of Client's desire to terminate their Services immediately.
8.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS
CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND TIERRA HOSTING'S TOS IN
THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS
ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREEMENT AND THE TOS.
CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO
TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
8.11 Entire Agreement. This Agreement, and the exhibits reference
herein, sets forth the entire agreement, and supersedes any and all prior agreements
of the parties with respect to the transactions set forth herein. Neither party
shall be bound by, and each party specifically objects to, any term, conditions
or other provisions which are different from or in which is proffered by the
other party in any correspondence or other document, unless the party to be
bound thereby specifically agrees to such provision in writing.
8.12 No Party Deemed Drafter. In the event that any provision hereof
is construed by a court of law or equity or an arbitrator, no provision herein
shall be construed more harshly against either party as drafter.
Exhibit A: Tierra Hosting Terms of Service (TOS)
TIERRA's current Terms of Service are available at the following URL:
http://www.tierrahosting.com/TOS.php or by clicking here.