This Service Agreement ("Agreement") sets forth the terms and conditions of your use of Totera Incorporated ("Totera")service request. To complete the request process, you must acknowledge that you have read, understood, and agree to be bound by all the terms and conditions of this Agreement, and any rules or policies that are or may be published from time to time. This Agreement will become effective upon acceptance by Totera. Totera may at its sole discretion, elect to accept or reject any request for services for any reason, including but not limited to, rejection due to a request for services by a non-authorized customer.
1. WHO WE ARE AND WHAT WE DO
Totera is an independently owned and operated Limited Liability Company providing web hosting, design, maintenance, and marketing. Upon receipt of service request and contact information from you, Totera shall commence with request immediately. All such requests are considered binding and all resulting fees must be paid in accordance with the terms set forth herein. Totera is not liable or responsible for any errors, omissions, or other actions by the requesting party, or failure to receive authorizations of changes beyond the electronic request form. You agree to indemnify, defend and hold harmless Totera, and any directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of or related to your service request.
As consideration for Totera providing services to you, you agree to pay Totera, upon completion of request services, the amounts set forth in the Totera Price Schedule, as amended from time to time, for the initial services completed and any subsequent services. You agree that Totera reserves the right to increase its fees and you agree to be bound by any fee increase. A complete listing of Totera Service Rates are available for review on the world wide web at http://www.totera.com/legal/rates
PROGRESSIVE PAYMENT TERMS Initial payment of 50% to begin project with the balance due upon completion. If project is still open after 30 days, 25% of contracted balance is due at that time. If project is still open after 60 days, 15% of contracted balance is due at that time. The remaining contracted balance is due when project is complete.
Your requested services may not be posted on the world wide web until Totera receives actual payment of the service fees, or reasonable assurance of payment of the service fees, such reasonable assurance to be determined by Totera in its sole discretion. Payment must be made by check or other methods we indicate on invoices or reminders in either written or electronic form. All fees are non-refundable, in whole or in part, even if the service request is suspended, cancelled or transferred prior to the end of completion. Failure to pay any invoice within ninety (90) days of invoice date may result in addition charges, including collection costs and attorney fees.
FINANCE CHARGES & LATE PAYMENT FEE
Totera will notify you when the requested services are complete. All fees must be paid-in-full on or before the Due Date the invoice date. If Balance Due is not paid in full by the Due Date printed on the invoice, a late payment fee will be added to the amount due at the beginning of each month that an unpaid balance remains. If balance due is not paid-in-full after a second notice or reminder is issued, services may be cancelled. The current finance charge rates are available for review at http://www.totera.com/legal/rates
CHANGES TO REGISTRATION AGREEMENT AND DISPUTE POLICY
You agree that Totera reserves the right to withhold and/or change its existing and future services and the terms and conditions thereof at its discretion. You agree to be bound by any such changes unless you provide us with written notification to the contrary. Your continued use of the affected web site, services, or hosting constitutes acceptance of this Agreement and amendments. If at any time, you do not agree to such changes, you agree that your sole remedy is to request that your service provided by Totera be cancelled or transferred to a different web services provider.
4. SERVICE REQUEST INFORMATION AND ITS USE NFORMATION YOU ARE REQUIRED TO SUBMIT
As part of the service request process, you are required to submit to Totera and keep promptly updated the following information in connection with your application for domain name registration:
(a) the domain to be registered, hosted, or serviced;
(b) the name of the requesting company;
(c) the contact name of the requesting company;
(d) the current contact email;
You shall provide and maintain updated information at all times with Totera. Totera at its option may refuse to renew any registrations unless you maintain current and updated information at all times.
Totera may from time to time request additional information from you. While not obligated to provide the additional information, you should provide the additional requested information to ensure that you will obtain all the products and services which Totera makes available to domain name registrants.
OBLIGATIONS RELATING TO DATA PROVIDED BY YOU
If in registering a domain name you provide information about a third party, you hereby represent that you have provided notice to and have obtained the express consent from the third party to the disclosure and use of the third party's information as set forth in this Agreement. You acknowledge that:
(a) Willfully providing inaccurate or unreliable information;
(b) willfully failing to update information promptly; or
(c) failing to respond to Totera inquiries concerning the accuracy of contact details within fifteen (15) calendar days of request; Shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of services.
DISCLOSURE AND USE OF REGISTRATION INFORMATION
You agree to authorize Totera to provide any information to other third parties as applicable laws may require or permit. You acknowledge and agree Totera may make publicly available, some or all of the information provided by you, for purposes of inspection such as through Totera WHOIS service, for targeted marketing, or for any other purpose as required or permitted applicable laws.
You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of information and updated from time to time provide in connection with registration of a domain name, whether during or after term of the registration of the domain name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of the domain name registration information.
You agree to give notice equivalent to the foregoing to any third parties whose personal data you supply to Totera and you agree to obtain the consent of those parties equivalent to the foregoing.
We will not process any data about identified or identifiable natural persons that we obtain from you in a way incompatible with the purposes and limitations described in this Agreement. We will take reasonable precautions to protect the information we obtain from you from our loss, misuse, unauthorized access or disclosure, alteration or destruction of that information.
5. WEB HOSTING
In the event that you are transferring one or more domain names registered with another registrar to Totera, you agree that express authorization is required from one with apparent authority to legally bind the domain name holder. Specifically, you agree that only the domain name holder or administrative contact for the domain name holder as shown in the Whois database of the transferring registrar can provide such authorization. You represent that you are the domain name holder or administrative contact of the domain name holder as shown in the Whois database of your current registrar, and that you have apparent authority to legally bind the domain name holder. You authorize Totera to contact your current registrar to confirm that you are the domain name holder of record or the administrative contact of the domain name holder. You authorize the transfer of registration(s) to Totera for the domain name(s) listed in the Registrar Transfer Application.
You agree that you shall not transfer your domain name registration until sixty days have elapsed from the time of initial domain name registration. You agree that the transfer of domain name registrations may be refused if there is a dispute concerning the domain name or the domain name holder's identity, if the domain name holder is the subject of a pending bankruptcy, by operation of law, or in the scenarios in the domain name dispute policy, or at the current registrar's discretion.
You agree that the transfer of registrars to Totera necessitates the payment of a new one-year registration fee to the Registry and you agree to be responsible for such payment. You acknowledge that the transferring registrar will not receive a refund for any fees already paid.
You agree that the domain name holder shall keep suitable records to show and evidence initial domain name registration date despite the number of registrars that the domain name holder has contracted with. In transferring domain name registration(s), you agree that Totera acquires rights of ownership in registrar identity, the original registration creation date, the registration expiry date, the name and postal address of the domain name holder, and the name, postal address, e-mail address, voice telephone number, and fax number of the administrative and technical contacts for the domain name holder.
6. OWNERSHIP OF DATA
You agree and acknowledge that Totera owns the following:
(a) all database, compilation, collective and similar right, title and interests worldwide in the domain name database;
(b) all information and derivative works generated from the domain name database; and
(c) information for the registrations for which Totera acts as the registrar including:
(i) the original creation date of the registration;
(ii) the expiration date of the registration;
(iii) the name, mailing address, email address, telephone number, and fax number of the technical contact, administrative contact, zone contact, and billing contact for the domain name;
(iv) remarks concerning the registered domain name that appear or should appear in the WHOIS or similar database; and
(v) other information generated or obtained in connection with the provision of domain name registration services, other than the domain name being registered, and the IP names and addresses of the primary nameserver and any secondary nameservers subject to a non-exclusive, irrevocable, royalty-free license to exercise or have exercised all such rights for or on behalf of ICANN throughout the world, which ICANN may sublicense to any other registrar it accredits and a non-exclusive, irrevocable, royalty-free license to make use of and disclose the data elements comprising the domain name to be registered, the IP names and addresses of the primary name servers and any secondary name servers, the identity of the registrar, the registration expiry date, the name, mailing address, email address, telephone number, and fax number of the technical contact, administrative contact, and zone contact, and any remark concerning the registered domain name that should appear in Whois data in a Whois or similar service. ICANN may waive, in writing, the requirement for the non-exclusive, irrevocable, royalty-free license to make use of and disclose the data elements comprising the domain name to be registered, the IP names and addresses of the primary name servers and any secondary name servers, the identity of the registrar, the registration expiry date, the name, mailing address, email address, telephone number, and fax number of the technical contact, administrative contact, and zone contact, and any remark concerning the registered domain name that should appear in Whois data in a Whois or similar service.
Totera does not have any ownership interest in your specific personal registration information outside of your right in our domain name database.
7. AGENTS AND LICENSES
You agree that in the event you request services for another entity, you represent that you have the authority to bind that entity as a principal to all terms and conditions contained in this Agreement.
You acknowledge and agree that if you license the use of your website, domain name, or server space to a third party, you remain the holder of record and remain responsible for all obligations under this Agreement, including payment obligations, and providing and updating your full contact information, and accurate technical, administrative, billing, and zone contact information adequate to facilitate timely Resolution of any problems that arise. You agree that any other party you represent who uses this service accepts liability for harm caused by the wrongful use.
8. LIMITATION OF LIABILITY
You agree that Totera shall, under no circumstances, be liable for any special, indirect, incidental, punitive, exemplary, or consequential damages resulting from loss of profits, arising out of or in connection with this Agreement, even if Totera has been advised of the possibility of such damages, and in particular Totera will not be liable for the following:
(a) suspension or loss of your domain registration;
(b) suspension or loss of files we may have saved on any server;
(c) suspension or loss of web site hosting service;
(d) use of your web site;
(e) interruption of your business;
(f) access delays or interruptions to any web sites accessed by your registered domain name or server;
(g) non-delivery, mis-delivery, corruption, destruction, or modification of data;
(h) events beyond the reasonable control of Totera;
(i) inaccurate processing of service request form; or
(j) any loss of business, wages, or other income as a result of requested services.
Totera shall not, under any circumstances, be liable for any errors, omissions or other actions by the registry administrator arising out of or related to the requested service, or failure to receive requested services.
Totera maximum aggregate liability shall not exceed the greater of:
(a) the total amount paid by you for requested services; or
9. INDEMNIFICATION OF Totera
You agree to defend, indemnify and hold harmless Totera, including its employees, directors, officers, representatives, agents and affiliates, from any loss, damages or costs, including reasonable legal fees and expenses, resulting from any claim, action, suit, demand, or other proceeding related to or arising out of the use services.
10. REPRESENTATIONS AND WARRANTIES
You represent that, to the best of your knowledge and belief, that:
(a) all information provided in connection with your service request is accurate;
(b) neither the service requested, affected web site, nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
You acknowledge and agree that all services provided to you by Totera are provided on an "as is" basis. Totera makes no representations or warranties of any kind, express or implied, in connection with this Agreement or its services, including but not limited to warranties of merchantability or fitness for a particular purpose. Totera makes no representation or warranties of any kind that registrations or use of services under this Agreement will immunize you from challenges to the domain name registration or from suspension, cancellation, or transfer of the domain name to you.
11. BREACH AND REVOCATION
Totera reserves the right to suspend, cancel, transfer or modify your service in the event that:
(a) you materially breach this Agreement and do not cure such breach within thirty (30) calendar days of notice from Totera;
(b) you use your hosted website or domain name to send unsolicited commercial advertisements in contravention of applicable laws or customary acceptable usage policies of the Internet;
(c) you use your website or domain name in connection with unlawful activity; or
(d) grounds arise for such suspension, cancellation, transfer or other modification as provided in this Agreement.
You further acknowledge and agree that all services are subject to suspension, cancellation or transfer by any party (including Totera) or registry administrator according to country code top-level domain registry administering procedures to correct mistakes by Totera, another registrar or the registry administrator in registering or administering the name or for the resolution of disputes concerning the domain name. You also agree that Totera has the right in its sole discretion to cancel, with reasonable cause, or in its sole discretion to suspend, transfer or otherwise modify a domain name registration upon seven (7) calendar days' prior written notice. You also agree that Totera has the right to suspend, cancel, transfer, or otherwise modify a domain name registration pursuant to a properly authenticated order from a court of competent jurisdiction, or arbitration award, requiring the suspension, cancellation, transfer, or modification of the domain name registration.
12. OTHER TERMS AND CONDITIONS
Totera shall not be responsible for any failure to provide any service or perform any obligation because of any act of God, strike, work stoppage, governmental acts or directives, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force beyond its reasonable control.
The failure of Totera to require your performance provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Totera of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
The provisions, terms, conditions, representations, warranties, covenants, and obligations contained in or imposed by this Agreement which by their performance after the termination of this Agreement, shall be and remain enforceable not with standing termination of the Agreement for any reason. However, neither party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms but each party shall be liable for any damage from any breach by it of this Agreement.
You agree that any notice or communications required or permitted to be delivered under this Agreement by Totera to you shall be deemed to have been given if delivered in accordance with the contact information you have provided.
This Agreement, your rights and obligations and all contemplated by this Agreement shall be governed by the laws of the State of Washington, as if this Agreement was a contract wholly entered into and wholly performed within the State of Washington. Except as otherwise set forth in the Dispute Policy with respect to disputes, any action to enforce this Agreement or any matter relating to your use of the Totera site shall be brought exclusively in the State of Washington Supreme Court.
For the adjudication of disputes concerning or arising from the request of services, the requesting party shall submit, without prejudice, to other potentially applicable jurisdictions, to the jurisdiction of the courts of the requesting party’s domicile or where the requesting party is located.
If any legal action or proceeding, including arbitration, relating to the performance or the enforcement of any provision of this Agreement is brought against party, the prevailing party shall be entitled to recover reasonable legal fees, costs and disbursements, in addition to any other relief to which the prevailing party may be entitled.
You agree that you will not assign, sub-license or transfer your rights or obligations under this Agreement to any third party unless you bring to the attention of such third party this Agreement, including all of its terms and conditions, and that you will cause such third party to agree to be bound by this Agreement in its entirety.
This Agreement constitutes the entire Agreement between the parties and agreements are representations or warranties, express or implied, statutory or otherwise and no agreements collateral here to than as expressly set or referred to here in. This Agreement supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth here in.
AMENDMENT IN WRITING.
This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Totera.
The parties here in shall execute such further and other documents and instruments and take such further and other actions as may be necessary to carry out and give full effect to the transactions contemplated by this Agreement.
RELATIONSHIP OF THE PARTIES.
Nothing in this Agreement shall be construed as creating an agency relationship, partnership or joint venture between the parties.
JOINT AND SEVERAL OBLIGATIONS.
If any party consists of more than one entity, their obligations here under are joint and several.
NO THIRD PARTY BENEFICIARIES.
This Agreement does not provide and shall not be construed to provide any third parties, with any remedy, claim, cause of action or privilege.
SUCCESSORS AND ASSIGNS.
This Agreement shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. Totera will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Totera as reflected in the original provision.