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TERMS OF SERVICE (TOS)
This
Shearar.Net Terms of Service (this "Agreement") and the Shearar.Net
Acceptable Use Policy ("AUP") govern your purchase and use of all
Shearar.Net services (collectively, the "Services"), as described in
the Order Form(s) submitted by you and accepted by Shearar.Net
(“Service Order”). Acceptance of any terms or conditions different from
those contained herein by Shearar.Net will not be deemed by provision
of service, but only by electronic or written signature of an officer
of Shearar.Net. You must register and accept the terms of this
Agreement and the AUP in order to use the Services. BY CLICKING ON THE
"I ACCEPT" BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES,
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP, AND
AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL
AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED
HEREIN BY REFERENCE. Shearar.Net may modify any of the terms and
conditions contained in this Agreement and the AUP, at any time, in its
sole discretion. Any modifications are effective upon posting of the
revisions on the Shearar.Net web site (the "Site"). Your continued use
of the Services following Shearar.Net posting of any modifications
constitutes your acceptance of the modifications. If you do not agree
to the terms of any modification, do not continue to use the services
and immediately notify Shearar.Net of your termination of this
Agreement in the manner described in the section below.
Shearar.Net agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).
The
Use of Shearar.Net service constitutes acceptance and agreement to
Shearar.Net AUP as well as Shearar.Net TOS (Terms of Service).
Term and Payment for Services
Term:
This Agreement will be for an initial “Term“ of 1 month from the date
the Services are first provided by Shearar.Net. This Agreement will be
automatically renewed (the "Renewal Term") at the end of the Initial
Term or any Renewal Term for a period of thirty (30) days unless you
provide Shearar.Net with written notice of termination at least thirty
days (30) before the end of the Initial Term or Renewal Term (also
referred to interchangeably and collectively as “Term”), whichever is
then applicable. To provide your notice of termination, you must submit
an email to the Billing department at
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Pricing and
duration of Terms may be modified only if in writing (such as a Service
Order) signed by Shearar.Net.
Termination
This
Agreement may be terminated: (i) by you or Shearar.Net during any
Renewal Term, without cause, by giving the other party no less than 30
days prior written notice, or a greater number of days prior notice if
specified in a Service Order accepted by Shearar.Net; (ii) by
Shearar.Net in the event of nonpayment by you as provided in the
section below or (iii) by Shearar.Net, at any time, without notice, if,
in Shearar.Net sole judgment, you are in violation of any terms or
conditions of the AUP. If you terminate this Agreement, or if
Shearar.Net terminates this Agreement for your breach, before the end
of the Initial Term or the Renewal Term, whichever is then applicable,
you will be required to pay immediately all fees and costs accrued
before the termination date, all monthly recurring fees for each month
remaining in the Term and any other amounts you owe to Shearar.Net
under this Agreement.
Charges
You
will pay all charges for your use of the Services at the then current
Shearar.Net prices for that category of service or any special offer
applicable to your account as determined by Shearar.Net. You are
responsible for all costs of collection of all amounts owed under this
Agreement, including reasonable attorney’s fees of Shearar.Net.
Payment and Fees
You
will pay all charges for the first month of service in advance on the
first day of the Initial Term. You will pay all subsequent charges for
Services in advance on the anniversary day of each month. You must pay
for the Services by credit card, debit order or Paypal. You authorize
Shearar.Net to charge your credit or debit card to pay for any charges
that may apply to your account. You must notify Shearar.Net of any
changes to your card account (including, applicable account number or
cancellation or expiration of the account), your billing address, or
any information that may prohibit Shearar.Net from charging your
account. Your failure to fully pay any fees within 72 hours from the
applicable due date is a material breach of this Agreement, justifying
Shearar.Net to suspend its performance and terminate this Agreement. If
Shearar.Net terminates for your material breach, you will be required
to pay immediately all fees and costs accrued before the termination
date, all monthly recurring fees for each month remaining in the term
and any other amounts you owe to Shearar.Net under this Agreement. You
are responsible for any costs that Shearar.Net incurs in enforcing
collection, including reasonable attorneys' fees, court costs and
collection agency fees.
Credit cards / debit orders
that are declined for any reason or Paypal payments that are not made
are subject to a processing fee. Service will be interrupted on
accounts that reach 5 days past due. Service interrupted for
non-payment is subject to a R150 reconnect charge. Accounts not paid by
the due date are subject to a R5 late fee. Accounts that are not
collectable by Shearar.Net may be turned over to an outside collection
agency for collection. If you account is turned over for collection,
you agree to pay the company a “Collection“ fee of not less than R50.
If you desire to cancel the account, please follow the correct
procedure.
Refund and Disputes
*All
payments to Shearar.Net are nonrefundable*. This includes any
applicable setup fees and subsequent charges regardless of usage.
Failure to Pay
The
Company may temporarily deny service or terminate this Agreement upon
the failure of Subscriber to pay charges when due. Such termination or
denial will not relieve the Subscriber of responsibility for the
payment of all accrued charges, plus reasonable interest and any
collection fees.
Use of Services
Acceptable
Use Policies: The AUP governs the general policies and procedures for
use of the Services. The AUP is posted on the site at (or such other
location as Shearar.Net may specify) and may be updated from time to
time. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE
AUP AND ANY MODIFICATIONS TO THE TERMS. SHEARAR.NET MAY TERMINATE YOUR
ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT.
Security:
You are solely responsible for any security breaches affecting servers
or accounts under your control. If your server is responsible for or
involved in an attack on or unauthorized access into another server or
system, Shearar.Net will shut it down immediately. You will pay any
charges resulting from the cost to correct security breaches affecting
Shearar.Net or any of its other customers.
System and Network Security
Users
are prohibited from violating or attempting to violate the security of
the Shearar.Net Network. Violations of system or network security may
result in civil or criminal liability. Shearar.Net will investigate
occurrences which may involve, and cooperate with law enforcement
authorities in prosecuting Users who are involved in such violations.
These violations include, without limitation:
- Accessing data not intended for such user or logging into a server or account, which such user is not authorized to access.
- Attempting
to probe, scan or test the vulnerability of a system or network or to
breach security or authentication measures without proper authorization.
- Attempting
to interfere with service to any user, host or network, including
without limitation, via means of overloading, flooding, mail bombing or
crashing.
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- Taking any action in order to obtain services which such user is not entitled.
Notification of Violations or Infractions
Shearar.Net is under no duty to look at each client’s or user’s
activities to determine if a violation of the AUP has occurred, nor do
we assume any responsibility through our AUP to monitor or police
Internet related activities.
Violations of the AUP will result in the following:
A warning notification sent via email, Shearar.Net trouble ticket with 24 hours notice for resolution:
24 hours is the standard notification; situations involving law
enforcement, phishing scams, fraud, password harvesting, network
interference, Denial or Disruption of service, IRC related misuse, or
other malicious activity can reduce the notification time frame.
- First Violation: Any user, which Layered Tech determines
to have violated any element of our AUP (Acceptable use Policy), shall
receive an e-mail, warning them of the violation. The service may be
subject at Shearar.Net discretion to a temporary suspension pending a
client’s agreement in writing to refrain from any further violations.
- Second
Violation: Any client that Shearar.Net determines to have committed a
second violation of nay element or portion of the AUP shall be subject
to immediate suspension or termination of service without further
notice.
- We reserve the right to drop the section of
IP space involved in any SPAM or Denial-of-Service (Dos) complaints if
it is clear that the offending activity is causing great harm to
parties on the Internet. In particular, if open relays are on your
network or a customer’s network, or if denial-of-service attacks are
originating from your network. In certain rare cases, we may have to
take this action prior to attempting to contact you.
Disclosure to Law Enforcement
The
AUP specifically prohibits the use of our service for illegal
activities. Therefore, Subscriber agrees that the Company may disclose
any and all Subscriber information, including assigned IP addresses,
account history, account use, etc. to any law enforcement agency who
makes a written request without further consent or notification to the
Subscriber. In addition Shearar.Net shall have the right to terminate
all service set forth in this Agreement.
Support Services and Boundaries
We limit our technical support to our area of expertise. The following are our guidelines when providing support:
Shearar.Net provides support related to your subscribed services.
Shearar.Net does not provide support for application specific issues,
such as any programming, HTML, third party applications or any other
such issue.
Intellectual Property Rights
Your
Warranties and Representations to Shearar.Net: You warrant, represent,
and covenant to Shearar.Net that: (a) you are at least 18 years of age
if an individual; (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, including the AUP; and (d) your content 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.
IP Addresses
Shearar.Net will maintain and control ownership of
all Internet Protocol ("IP") numbers and addresses that Shearar.Net may
assign to you. Shearar.Net may, in its sole discretion, change or
remove any and all IP numbers and addresses.
Third Party Products
Shearar.Net
may provide you access to other third party software and/or services
("Third Party Products") through reseller relationships that
Shearar.Net has established with certain commercial vendors, including
without limitation, Microsoft Corporation ("Third Party Vendors").
Unless otherwise notified, Customer understands that product support
for Third Party Products is provided by Shearar.Net and not by the
Third Party Vendor. Neither Shearar.Net nor any Third Party Vendor
makes any representations or warranties, expressed or implied,
regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND
AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND
SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND FROM Shearar.Net OR ANY THIRD
PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES,
ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO
DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Shearar.Net NOR ANY THIRD
PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER
DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY
TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF
ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD
PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY
VENDORS AND Shearar.Net WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD
PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR
APPLICABLE END USER SUBSCRIBER AGREEMENTS.
You shall not (i) remove, modify or obscure any
copyright, trademark or other proprietary rights notices that appear on
any Third Party Product or that appear during use of any Third Party
Product; or (ii) reverse engineer, decompile, or disassemble any Third
Party Product, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation.
Enforcement Actions
Shearar.Net reserves the right to suspend or
terminate the Service immediately or take any other corrective action
it deems appropriate in its sole discretion if in the sole judgment of
Shearar.Net your server is the source or target of any violation of the
AUP or for any other reason which Shearar.Net chooses. If inappropriate
activity is detected, all of your accounts in question will be
deactivated until an investigation is complete. Prior notification to
you is not assured. In some cases, law enforcement will be contacted
regarding the activity. These rights of action, however, do not
obligate Shearar.Net to monitor or exert editorial control over the
information made available for distribution via the Services. If
Shearar.Net takes corrective action because of a possible violation,
Shearar.Net will not refund you any fees that you paid in advance of
the corrective action.
Disclosure Rights
The AUP specifically prohibits the use of our
service for illegal activities. Therefore, you agree that Shearar.Net
may disclose any and all of your information including assigned IP
numbers, account history, account use, etc. to any law enforcement
agent who makes a written request without further consent or
notification to you. In addition, Shearar.Net shall have the right to
terminate all service set forth in this Agreement.
Disclaimed Warranties
Shearar.Net exercises no control over, and accepts
no responsibility for, the content of the information passing through
Shearar.Net host computers, network hubs and points of presence, or the
Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED
THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS
AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF
PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR
COMMUNICATION SYSTEMS. SHEARAR.NET DOES NOT MAKE AND DISCLAIMS, AND YOU
WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY
LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN
TRADE. SHEARAR.NET DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Limitation and Exclusion of Liability
Limitations
IN NO EVENT WILL SHEARAR.NET OR ITS SUPPLIERS HAVE
ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR
DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR
DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR
DEVICES. NEITHER SHEARAR.NET NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH
RESPECT TO SHEARAR.NET'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES
EVEN IF SHEARAR.NET HAS BEEN ADVISED OF THE POSSIBILITY OF THESE
DAMAGES. THE LIABILITY OF SHEARAR.NET AND ITS SUPPLIERS TO YOU FOR ANY
REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU
ACTUALLY PAID TO SHEARAR.NET UNDER THIS AGREEMENT DURING THE THREE (3)
MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY
SHEARAR.NET UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE
BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE
SHEARAR.NET AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS,
LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION.
Interruption of Service
Shearar.Net and its suppliers are not liable for any
temporary delay, outages or interruptions of the Services. Further,
Shearar.Net is not liable for any delay or failure to perform its
obligations under this Agreement, where the delay or failure results
from any “act of God” or other cause beyond its reasonable control
(including any mechanical, electronic, communications or third-party
supplier failure).
Indemnification
In agreeing to the Shearar.Net AUP and this Agreement, you agree to
indemnify, defend and hold harmless Shearar.Net, its employees,
officers, directors, partners, representatives and affiliates, for any
violation by you or your customers of the AUP or this Agreement that
results either in (a) any cost, expense, damage or loss to Shearar.Net,
or (b) the bringing of any claim against Shearar.Net by any
third-party, and all costs, expenses, damages, and losses associated
therewith. For example, if Shearar.Net is sued because of your or your
customer's activity related to the Services, you will pay any damages
awarded against Shearar.Net, its employees, directors, partners,
representatives and affiliates, in addition to all costs and attorney's
fees.
MISCELLANEOUS PROVISIONS
Shearar.Net
and you agree that, except as otherwise expressly provided in this
Agreement, the Order Form(s) or the terms and conditions of use of any
third party software products, there shall be no third party
beneficiaries to this Agreement, including but not limited to the
insurance providers for either party or your customers. THIS AGREEMENT
IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING
CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS
AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE
INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING
OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL
COURTS IN TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL
JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. In the event any
provision of this Agreement is held by a tribunal of competent
jurisdiction to be contrary to the law, the remaining provisions of
this Agreement will remain in full force and effect. The waiver of any
breach or default of this Agreement will not constitute a waiver of any
subsequent breach or default, and will not act to amend or negate the
rights of the waiving party. You may not sell, assign or transfer its
rights or delegate its duties under this Agreement either in whole or
in part without the prior written consent of Shearar.Net, and any
attempted assignment or delegation without such consent will be void.
Shearar.Net may assign this Agreement in whole or part. Shearar.Net
also may delegate the performance of certain Services to third parties.
All notices, demands, requests or other communications required or
permitted under this Agreement shall be deemed given when delivered
personally, sent by facsimile upon confirmation, sent and received by
return receipt email, or upon receipt of delivery of overnight mail.
You and Shearar.Net are independent contractors and this Agreement will
not establish any relationship of partnership, joint venture,
employment, franchise or agency between you and Shearar.Net. This
Agreement, including all documents incorporated herein by reference,
constitutes the complete and exclusive agreement between the parties
with respect to the subject matter hereof, and supersedes and replaces
any and all prior or contemporaneous discussions, negotiations,
understandings and agreements, written and oral, regarding such subject
matter.
Survival
All provisions of this Agreement
relating to your warranties, intellectual property rights, limitation
and exclusion of liability, your indemnification obligations and
payment obligations will survive the termination or expiration of the
Agreement.
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