Terms of Service

CLOUD TERMS OF SERVICE (TOS)

This agreement is applicable to all variants of Top Hosting Center Cloud Hosting and Cloud Server products.

AGREEMENT 

In this Agreement ("Agreement") "you" and "your" refer to each customer, "we", us" and "our" or “THC” refer to Tophostingcenter.com Division of Proweb Consultants Inc. and "Services" refers to the domain name registration, Web Hosting provided by us as offered through Tophostingcenter.com, This Agreement explains our obligations to you, and explains your obligations to us for various Services or dedicated servers.

GENERAL TERMS 

1. Terms Definition.
   
   "Acceptable Use Policy" or "AUP" means the Top Hosting Center Cloud Acceptable Use Policy posted at http://www.tophostingcenter.com/legal.html as of the date you sign the Order, as it may be amended pursuant to Section 21 below.
   "Business Day" means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States Eastern Standard Time (EST), excluding federal public holidays in the United States.
   "Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, the Top Hosting Center cloud system, (ii) for Top Hosting Center, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
   "Junk Mail" means email that is captured by our mail filter and other email that is reported by you to Top Hosting Center as undesirable.
   "Order" means either: (i) the online order that you submit to Top Hosting Center via the Top Hosting Center website, or (ii) any other written order (either in electronic or paper form) provided to you by Top Hosting Center for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
   "Services" means those services described in the Order.
   
   
2. Top Hosting Center's Obligations.
   
   Contingent on Top Hosting Center's acceptance of your Order, and subject to these Terms of Service, Top Hosting Center agrees to provide the Services. If you have met Top Hosting Center's minimum financial commitment for support, Top Hosting Center will provide support for the Services twenty four hours per day, seven days per week, year round. Top Hosting Center agrees to follow security procedures at least as stringent, in Top Hosting Center's reasonable judgment.
   
   
3. Your Obligations.
   
   You agree to do each of the following: (i) comply with applicable law and the Top Hosting Center Cloud Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Top Hosting Center's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify Top Hosting Center of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Top Hosting Center's reasonable determination shall control.
   
   
4. Access To The Services.
   
   You may access the Services via the online control panel. Top Hosting Center may modify its control panel at any time.
   
   
5. Term.
   
   The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Top Hosting Center's non-renewal process accessible from your control panel to give an effective notice of non-renewal.
   
   
6. Fees.
   
   Top Hosting Center will charge you the fees stated in your Order. If you have made a minimum commitment in your Order, and your actual usage does not meet or exceed the minimum commitment, Top Hosting Center will charge you the difference between your minimum commitment and your actual usage. Unless you have made other arrangements, Top Hosting Center will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Top Hosting Center's option; provided that Top Hosting Center may wait to charge your credit card until the total aggregate fees due are at least $50. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Top Hosting Center first makes the Services available to you. If you are using Top Hosting Center's billing services, as described in Section 31 (Billing Services) below, Top Hosting Center may at its option, either include the fees, charge backs, and other items described in Section 31 with your recurring or non-recurring fees, as applicable, or deduct them from your remittances. Top Hosting Center may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Top Hosting Center may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Top Hosting Center brings a legal action to collect, or engages a collection agency, you must also pay Top Hosting Center's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any "credit" that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Top Hosting Center with accurate factual information to help Top Hosting Center determine if any tax is due with respect to the provision of the Services, and if Top Hosting Center is required by law to collect taxes on the provision of the Services, you must pay Top Hosting Center the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Top Hosting Center to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.
   
   
7. Fee Increases.
   
   If you are under a month-to-month contract, then we may increase fees at any time on forty-five (45) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins forty-five days from the day of our written notice of a fee increase.
   
   
8. Suspension.
   
   We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Top Hosting Center or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
   
   
9. Termination For Convenience; Early Termination Fee.
   
   You may terminate the Agreement for convenience at any time on thirty days advance written notice. If you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term.
   
   
10. Termination For Breach.
    
    We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Top Hosting Center in an orderly fashion, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
    You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
    
    
11. Access To Data.
    
    11.1 You will not have access to your data stored on the Top Hosting Center Cloud™ system during a suspension or following termination.
    11.2 We backup the Top Hosting Center Cloud systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of the Top Hosting Center Cloud systems.
    11.3 Although the Top Hosting Center Cloud service may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Top Hosting Center Cloud system somewhere other than on the Top Hosting Center Cloud system.
    
    
12. Unauthorized Access To Your Data Or Use Of The Services.
    
    Top Hosting Center is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Top Hosting Center's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
    
    
13. Disclaimers.
    
    We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Top Hosting Center has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
    
    
14. Export Matters.
    
    You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Top Hosting Center is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
    
    
15. Confidential Information.
    
    Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
    to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
    to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
    in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
    
    
16. Limitation On Damages.
    
    Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct. If you have made the minimum financial commitment for coverage under a Service Level Agreement, the dollar credits stated in the Service Level Agreement are your sole and exclusive remedy for unavailability of the Services.
    Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
    Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Top Hosting Center's negligence, the maximum aggregate monetary liability of Top Hosting Center and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
    
    
17. Indemnification.
    
    If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Top Hosting Center Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Top Hosting Center Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
    
    
18. Microsoft Software.
    
    In addition to the terms of our Agreement, your use of any Microsoft software is governed by Microsoft's license terms.
    
    
19. Who May Use The Service.
    
    You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services that includes Microsoft software, then you must include these Microsoft terms described in Section 19 (Microsoft Software) above in a written agreement with your customers as well as the content of Section 23 (No High Risk Use). Unless otherwise agreed, Top Hosting Center will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
    
    
20. Changes To The Acceptable Use Policy.
    
    We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
    
    
21. Notices.
    .
    Your routine communications regarding the Services should be sent to your Top Hosting Center Cloud account team using your Top Hosting Center Cloud control panel. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail shown in our contacts page: http://www.tophostingcenter.com/contactus.html
    Top Hosting Center's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that Top Hosting Center may give notice of an amendment to the AUP by posting the notice on your Top Hosting Center Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to your Top Hosting Center Cloud control panel after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
    
    
22. No High Risk Use.
    You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
    
    
23. Ownership of Intellectual Property.
    
    Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Top Hosting Center during the performance of the Services shall belong to Top Hosting Center unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
    
    
24. IP Addresses.
    
    Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Top Hosting Center in connection with Services, including pointing the DNS for your domain name(s) away from Top Hosting Center Services.
    
    
25. Assignment / Subcontractors.
    
    You may not assign the Agreement without Top Hosting Center's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Top Hosting Center may use third party service providers to perform all or any part of the Services, but Top Hosting Center remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Top Hosting Center performed the Services itself.
    
    
26. Force Majeure.
    
    Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
    
    
27. Governing Law.
    
    THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF QUEBEC AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN QUEBEC AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
    
    
28. Some Agreement Mechanics.
    
    These Terms of Service may have been incorporated in your Order by reference to page on the Top Hosting Center website. Although we may from time to time revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. Top Hosting Center may accept or reject any Order you submit in its sole discretion. Top Hosting Center's provisioning of the Services described in an Order shall be Top Hosting Center's acceptance of the Order.
    An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
    Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
    If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 1, 6, 9, 15, 16, 17, 21, 23, 27, 29 and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
    If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
    The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
    
    Additional Terms for Related Services
    
    
29. Domain Name Registration Services
    
    If you register, renew, or transfer a domain name through Top Hosting Center, Top Hosting Center will submit the request to its domain name services provider (the "Registrar") on your behalf. Top Hosting Center's sole responsibility is to submit the request to the Registrar. Top Hosting Center is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar posted at http://www.tophostingcenter.com/legal.html. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
    
    
30. Billing Services.
    
    If you use our reseller billing services, then you appoint Top Hosting Center your true and lawful attorney-in-fact to bill end users, charge end user credit cards, and receive the billing proceeds in accordance with this Section. You must obtain from each end user to be billed a specific authorization for Top Hosting Center, doing business as "Web Hosting Billing Systems," to charge the end user's credit card for all charges payable to you pursuant to the agreement between you and the end user. You must provide Top Hosting Center with the correct rate for any applicable sales or other tax to be billed. Top Hosting Center is not obligated to begin billing an end user until 3 business days following the date that you have provided Top Hosting Center with complete, consistent, and verifiable credit card and related billing information, and the end user has passed Top Hosting Center's credit card acceptance criteria. You represent and warrant to Top Hosting Center that the end user credit card authorization is complete and valid, and that all charges, including taxes, are accurate, bona fide, and in accordance with the law and your agreement between you and your end user. Top Hosting Center will attempt to charge the end users' credit cards one time according to the collections process outlined in the Cloud Sites Control Panel. Top Hosting Center will notify you if the charges are disallowed, canceled, charged back, or are otherwise uncollectible. Any further collection efforts are your responsibility. Top Hosting Center will suspend end users for non-payment on your instruction in accordance with Top Hosting Center's suspension procedures. Top Hosting Center will remit billing proceeds to you on a monthly basis via electronic funds transfer, check, or other method it may choose in its sole discretion. Top Hosting Center may hold billing proceeds for a reasonable period of time as necessary to ensure that the proceeds are not subject to any charge back or refunds. Generally, this means that the proceeds from the initial charge of a credit card will be held for 60 days, and subsequent charges will be held for 30 days. If total collected proceeds are less than $50.00, Top Hosting Center may hold the proceeds for inclusion with the following month's remittance to you. You must repay any billing proceeds that Top Hosting Center remits to you that are subsequently charged back by or refunded to the end users' credit card companies or other payment processors, regardless of the reason for the charge back or refund. Top Hosting Center may, at its option, deduct from your monthly remittance or charge your credit card for any charge backs or refunds. You are responsible for reporting and remitting all taxes to the appropriate taxing authorities. Top Hosting Center will provide support to you and your end user on end user billing issues. Such support shall include answering billing questions, processing refunds and service credits, and updating credit card information. Your indemnification obligations stated in the Section – 18 (Indemnification) include third party claims arising from Top Hosting Center's provision of the billing services described in this paragraph, except and to the extent that such claims arise from Top Hosting Center's negligence, misconduct, or violation of the law.
    
    
31. Mail Services.
    
    31.1 Access. You may access you Mail Services over the web via our control panel, or via a Top Hosting Center-provided API. Top Hosting Center may modify its control panel or APIs at any time, or may transition to new APIs.
    31.2 Management of the Service. Top Hosting Center will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
    31.3 Filtering. Top Hosting Center will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Top Hosting Center recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Guaranty above. Top Hosting Center will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Top Hosting Center and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Top Hosting Center's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
    31.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost. As of November 2008, the per-message size limit is 50MB.
    31.5 Content Privacy. Your email messages and other items sent or received via the mail service will include: (i) the content of the communication ("content"), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the "message routing data"). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
    31.6 Usage Data. We collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.

LEGACY TERMS OF SERVICE (TOS)

This agreement is applicable to Top Hosting Center's legacy web hosting plans which include all variants of Rudolf hosting plans, Top Hosting Special hosting plans, Rudolf 2, Rudolf Mini hosting plans, and Speedy hosting plans.

AGREEMENT 

In this Agreement ("Agreement") "you" and "your" refer to each customer, "we", us" and "our" or “THC” refer to Tophostingcenter.com Division of Proweb Consultants Inc. and "Services" refers to the domain name registration, Web Hosting provided by us as offered through Tophostingcenter.com, This Agreement explains our obligations to you, and explains your obligations to us for various Services or dedicated servers.

GENERAL TERMS 

A. THC claims no control whatsoever over the content of the information passing through the THC WEB SYSTEM. THC makes no warranties of any kind, whether expressed or implied, for the service it is providing. THC also disclaims any warranty of merchantability or fitness for a particular purpose. 

B. THC will not be responsible for any damage you suffer. This includes loss of data resulting from delays, non-deliveries, or service interruptions caused by its own negligence or your errors or omissions. 

C. THC WEB HOSTING SYSTEM may only be used for lawful purposes. Transmission of any material in violation of any Federal, Provincial or local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret.

D. THC has the right to refuse to host adult content and to remove it from our servers at any time. Further, you are not permitted to distribute material promoting hatred against individuals or groups or any content which may be deemed to be illegal according to the laws of your country of residence. We reserve the right to decline requests for web space 
rentals and to cancel any account at our discretion. You are also not permitted to distribute material promoting any form of network abuse (such as bulk spam mailers, sniffers, hacking tools, or any consideration to file sharing). Any violations of these terms will lead to an immediate suspension of your account, with *no refunds* whatsoever.

E. At THC and its officer's discretion, access to THC WEB HOSTING SYSTEM may be revoked at any time for abusive conduct on the system and/or the Internet and its resources as a whole. Sending spam (unsolicited email) from a domain or about a domain is considered abuse of the system and will result in the termination of your account. THC and its officers are deemed as authority to define abusive conduct to the system, and definitions may periodically change or be amended to previous ones. 

F. You agree to indemnify and hold harmless THC from any claims resulting from your use of the service which damages you or another party. 

G. Use of any information obtained via THC WEB HOSTING SYSTEM is at your own risk. THC specifically denies any responsibility for the accuracy or quality of information obtained through its services. 

H. Telnet and Shell Access is strictly prohibited with all THC Shared hosting plans.

I. You may use ftp to access your home directory for the purpose of installing and editing your web pages as often as necessary.

J. These Terms and Conditions supersede all previous representations understandings or agreements and shall prevail notwithstanding and variance with terms and conditions of any order submitted. 

K. If the disk usage, transfer limit or number of email accounts of a hosted package is exceeded, the user's account will be charged for extra bandwidth, disk space and/or email accounts according to our present pricing policy. Warning messages will be emailed to users as they exceed 80% and 90% of their package's respective bandwidth and disk space limits. Annual accounts that incur extra usage charges will be invoiced separately. If payment for extra usage is not received within 10 days of the invoice date, the expiry date of the account will be adjusted according to the amount outstanding.

L. Without prior notification, THC reserves the right to suspend or terminate accounts, remove or modify any files which are deemed to be a threat to the functionality or existence of THC 'S WEB HOSTING SYSTEM. 

M. Miva Merchant or SSL license keys are nonrefundable.

N. If any THC account is generating web traffic considered unusually high, we may require the site to be placed on a Heavy User server Virtual Server. We reserve the right to make this determination at our discretion.

O. Use of THC WEB HOSTING SYSTEM constitutes acceptance of these Terms and Conditions.

 

P. Server Resources -  *This paragraph refers to shared hosting only.

1. Running programs in the background on a THC’s server without  prior written authorization, or running chat rooms, Internet Relay Chat (IRC) or IRC Bots, more then 1200 emails a day and the like are not acceptable uses of THC's servers. Further, any usage of fifteen percent (15%) or more of our system resources is an undue burden on our system and is unacceptable.
2. THC offers unmetered bandwidth policy for all shared hosting plans. Site owners will not be billed separately for the bandwidth usage. If the amount of data transfer exceeds the user's plan subscription, the account will not be suspended but the user will receive a warning through an email. THC ensures that legitimate websites' services will not be disrupted and a positive option may be given to the site owner who exceeds the alloted bandwidth.
3. THC Web Hosting intends to offer services to host web sites, not store data. Using an account primarily as an online storage space for archiving electronic files is prohibited.

Q. Commercial Advertising - E-mail

ANY form of spamming activity (e.g. mail spam, Usenet spam, pop-up spam, selling/buying spamware, and so on) conducted ANYWHERE on the Internet, i.e. whether through our facilities or not, will be:

1. grounds for instant, permanent termination of all services with no prior warning;
2. will be grounds for seizure of all on-premises equipment and data;
3. will be grounds for forfeit of all funds paid;
4. will result in a demand for payment of a fine (to cover damage to our reputation)
5. $600/incident/spam clean-up fee, all of which is payable within 24 hours or will be referred to a collection agency;

 

1.0 Account Payment

A. Payment via Credit Card: 
THC, accepts payments via MasterCard, VISA, AMEX and Paypal . Usage of a credit card indicates authorization to cover all future recurring charges and additional fees with the credit card on file. Credit cards will be charged on the renewal date for the account. 
Please in the case of a dedicated server order fill the credit card application form:
http://www.tophostingcenter.com/images/creditcardform.pdf 
And fax it to 1-514-227-5488 or to : billing@tophostingcenter.com

 

B. Other Payment Methods: 
THC, accepts Paypal and doesn’t accept personal check, company check, echeck, wire transfer and money order. All funds must be payable in US dollars and THC doesn’t accept international checks in foreign currencies.

2.0 Late or Non-Payment

 

A. Accounts with Non-Usable Credit Cards

Credit cards on file are not usable when any of the following occur:

1. The card has expired; 
2. The card declines the charges; 
3. The card is reported lost or stolen; 
4. The card is declared invalid. 
   1. You will receive an invoice 1 day prior to your renewal.
   2. After 4 days pass you will receive another invoice. (Reminding you of the outstanding balance)
   3. On the 7th day, you will receive a Suspension notice with the date your account will be suspended.
   4. If your balance has not been brought to zero, the account will be suspended (a $35 reactivation fee will apply and your billing date will be changed to the date payment was received).
   5. If payment has still not been made, we will leave the server in its spot offline for 1 week. If we have not heard back from you or receive payment, your server will be taken offline and resold "ALL FILES WILL BE DELETED FROM OUR SYSTEM"

3.0 Cancellation Policy

 

A. Requesting an Dedicated Server Account Cancellation

A cancellation will only be accepted if it is done by writing to THC's Customer Care email address at least fifteen (15) days in advance of the date of renewal. Accounts cancelled before fifteen (15) days notice will have to be cancelled at the end of the next term and shall be charged accordingly.

 

B. Results of a Cancellation

When a cancellation request is made, THC will immediately remove all configuration information as well as all contents of the account on the date of the next renewal of the account. Customer may request immediate cancellation if so desired THC will remove all files. This may include unread e-mail left on the server.

THC does not offer refunds for services after the initial four (4) days of service. THC does not issue prorated refunds for prepaid service.

 

4.0 Refund Policy 

 

A. Refunds within the First 30 Days of Service or Money Back Guarantee 
Refunds will be credited to the credit card on file or Paypal account used to order service.

1. The THC Money Back Guarantee applies to Linux and Microsoft Shared Hosting, Microsoft Exchange Hosting, and VPS (Virtual Private Servers).
2. Refund only applies to monthly fees.
3. The THC Money Back Guarantee “does not apply” to dedicated managed THC Server products. All monthly and setup fees for dedicated managed Server products are non-refundable.
4. The THC Money Back Guarantee starts on the date when the initial order was placed.
5. THC has no refund policy for domain name registration fees.

Bandwidth

1. THC has no refund policy for unused bandwidth.
2. Upon availing of the 30-day Money Back Guarantee, a customer whose account exceeds the included bandwidth will be required to pay the additional bandwidth accrued.

Miscellaneous

1. THC has no refund policy on additional or optional services/ features added from the Control Panel by the customer.
2. Customers switching from one THC package to another THC package shall be deemed to have exhausted the 30-day period, and are no longer eligible for the Money Back Guarantee.
3. A customer can only use the Money Back Guarantee once, and for only one account.
4. The 30-day money back guarantee does NOT apply to software.
5. A customer whose account has been suspended or terminated due to the breach of any part of the THC

Conversion/Upgrade Conditions from Rudolf to Speedy Hosting Plan

1. Fifty percent (50%) of Rudolf price ( 95$) will be applied to a 24 months Speedy plan with a promo code.
2. The 30 days money-back guarantee of Rudolf hosting plan will be lost during the conversion to Speedy.
3. A minimum of 6 months contract will be applied. This means that no cancellation is possible for the next 6 months when Rudolf is upgraded to Speedy.
4. There will be no additional free domain name or domain transfer. The free domain name registration or domain transfer associated with Speedy hosting plan is only applicable to new customers.
5. No refund for Rudolf plan through Speedy plan will be possible.

B. No Refunds Outside of the First 30 Days

1. THC does not offer refunds for services after the initial thirty (30) days of service.
2. THC does not issue prorated refunds for prepaid service.

5.0 Limitation of Liability

 

You agree that our entire liability, and your exclusive remedy, with respect to any Services(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. 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. We disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data miss-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account identifier or password; (5) loss or liability resulting from errors, omissions, or is statements in any and all information or services(s) provided under this Agreement; (6) loss or liability resulting from the interruption of your Service. 

You agree that we will not be liable for any loss of registration and use of your domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages. In no event shall our maximum liability exceed five hundred ($400.00) dollars.

 

6.0 Governing Law

THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF QUEBC AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN QUEBEC AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS. 

 

7.0 Infancy 
You attest that you are of legal age to enter into this Agreement. 

8.0. ACCEPTANCE OF AGREEMENT

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICE AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 

THC Management
Tophostingcenter.com