Team Foundation Server Hosting Terms and Conditions Agreement
The Effective Date of this Agreement is the date indicated in the account activation order form (Order Form). The Order Form is completed by Customer online when ordering Services (as that term is defined in this Agreement). The Term of this Agreement is set out on the web page describing the Services (Term). Customer consents to be bound by this Agreement by submitting the Order Form or by signing a contract. Customer consents to any revisions to this Agreement or Incorporated Agreements by continuing to use the Services.
DASP’s website sets out the technical specifications, term and pricing for the services it provides to Customer. Throughout this Agreement and Incorporated Agreements these are referred to as “Services.” Certain aspects of the Services may be provided by third parties. If it is necessary to identify these aspects separately in this Agreement, they are referred to as “Third Party Services.”
Customer’s use of the Services must not exceed that of similarly situated customers (Fair Use). If Customer’s use of the Services exceeds the Fair Use threshold, DASP will notify Customer by email and suspend the part of the Services that is exceeding the Fair Use threshold. Customer must modify its use of the Services so as not to exceed Fair Use and then request the particular service to be restored. If Customer fails to take this action, DASP may assess Customer additional fees based on the costs associated with Customer’s acts. DASP may also terminate this Agreement at such time. DASP may also terminate this Agreement, or suspend the Services, if by exceeding Fair Use Customer endangers DASP’s network or its ability to provide Services to other customers.
The following provisions govern certain Services:
1.1. Community Forums
DASP has created a number of forums to allow Customers, End Users and Third Parties to discuss issues related to the Services provided by DASP and any components or technologies therein (Forums). Participation in the Forums is voluntary. DASP reserves the right, at its sole and exclusive discretion, to monitor, edit, and delete postings and ban users. Forums are provided “as is.” DASP makes no, and expressly disclaims any, warranties related to the Forums themselves or to the content therein. Use of the Forums, and reliance on any information therein, is at Customer’s own risk.
The Services, and any hardware, are configured by DASP. Customer is solely responsible for determining whether this configuration is suitable for Customer’s intended use.
DASP provides data backup to supplement Customer’s own disaster recovery and back up programs (Back Up). Back Up Services are not a substitute for Customer’s own efforts. Customer understands that Back Up Services may be incomplete or ineffective, and that restoring data using the Back Up Services may not recreate the configuration of Customer’s data as it existed prior to restoration.
DASP provides Customers with TFS Hosting database backups on request. Customers can request one backup per month. Should Customer require more than one backup per month, DASP will charge a service fee per incident.
2. 30-Day Money Back Guarantee
The Service carries a 30-day satisfaction guarantee (Guarantee). The Guarantee applies to your initial order, and the addition of any subsequent Services. It excludes third party services, setup fees and one time service fees. To cancel the qualifying Service and receive a refund, Customer must contact DASP within 30 days from the Effective Date for the particular Service. The Guarantee only applies to the first 30 days of an individual Service when initially established. For example, if Customer agrees to purchase a Service on day 1 and orders an additional Service on day 45, on day 50 Customer may only take advantage of the Guarantee for the second aspect of the Service, and remains responsible for the first ordered Service, since the Guarantee period for the first Service has passed.
3. Fraud Prevention and Security Screening
DASP uses multiple technologies to screen orders for fraud. Each request for new or additional Services is subject to fraud screening. DASP is not obligated to provide the Services to Customer unless and until the information Customer provides to DASP satisfies DASP’s fraud prevention controls. Should Customer fail to satisfy DASP’s fraud controls, Customer may remain responsible for Third Party Services ordered. DASP is not responsible, and Customer agrees to hold DASP harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.
DASP uses industry standard methods to secure the Services and its network. Customer is required to cooperate with DASP’s efforts to maintain this security. Customer is also required to report security deficiencies, viruses, and other network issues to DASP. These incidents may be reported to DASP at this address: email@example.com
Customer is required to provide the contact information set out in the Order Form and in DASP’s control panel (Customer Information). Customer warrants that the Customer Information is accurate and up to date. DASP will use the Customer Information to determine ownership of the Services. If there is a dispute concerning ownership of the Services, DASP may freeze Customer’s account until such time as the dispute is resolved by the parties.
If aspects of the Services are administered by Customer on behalf of another person or entity, Customer warrants that it will administer these Services in good faith. Customer further agrees to indemnify DASP against all losses and liabilities sustained by DASP should Customer administer the account in ways that are adverse to End Users and result in any claim against DASP.
The Fees for a particular Service are set out on the Order Form of each individual Service (collectively, the “Fees”) and are in US Dollars. Fees are guaranteed for the Term. During the Term, DASP may change the Fees. Any change of Fees will be effective at the beginning of the next Renewal Term. From time to time, DASP may offer special promotions with regard to the Fees. These promotions are specifically targeted, do not apply to previously ordered Services, and, depending upon their terms, may not apply to all Customers.
Fees will be charged to the credit card Customer sets out in the Customer Information. Fees are due as set out in the Order Form. It is Customer’s responsibility to ensure that its credit card is up to date and will not be declined. If DASP does not receive the Fees when charged (Payment Default) and cannot collect Fees in 7 days, Customer’s entire account will be suspended. During the time Customer’s account is suspended because of a Payment Default, various features of the Services may not be available. DASP is not responsible for any damages caused by an account suspended due to a Payment Default. Should Customer fail to cure a Payment Default within 15 days, this Agreement will be terminated, and all Services, including those for which Customer is not in Payment Default, will be terminated. Customer is responsible for all costs incurred by DASP in its efforts to collect amounts due. These costs include, but are not limited to, collection fees, reasonable attorney’s fees, and interest in the amount of 1.5% per month, or the highest amount DASP may legally charge.
Any disputes about Fees due must be presented in writing to DASP prior to the date the Fee is due (Bill Dispute Notice). Customer’s Bill Dispute Notice must contain sufficient detail to allow DASP to identify the basis and reasons for the dispute. If the Bill Dispute Notice is received by DASP after the date a Fee is due, Customer has waived the right to dispute the Fee. DASP will use reasonable efforts to investigate the dispute within 30 days of its actual receipt of the Bill Dispute Notice. DASP will respond to the Bill Dispute Notice in writing. If DASP agrees that a particular Fee was charged in error, DASP will credit Customer’s account within 30 days. If DASP disagrees with the Bill Dispute Notice, the parties agree that for a period of 60 days, they will work in good faith to resolve the dispute. If the parties fail to agree to resolve the dispute, the parties are entitled to exercise their rights under this Agreement or at law. During the time following DASP’s actual receipt of a Bill Dispute Notice, all undisputed Fees for Services must be paid when due. Customer agrees to waive its right to withhold Fees during a bill dispute, and/or to set off other Fees due against those in dispute.
The Term for a particular Service is set out on the Order Form. Upon expiration of the Term, the Order will renew for the period of the prior Term (Renewal Term), and subsequently renew at the end of each Renewal Term unless terminated as provided in this Agreement.
Either Customer or DASP may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the other with written notice of termination. This notice must be delivered prior to the expiration of the Term.
Either Customer or DASP may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the other with written notice of material breach. The party against whom material breach is alleged shall have 10 calendar days to correct the material breach. However, if the material breach is incapable of cure, this Agreement, or that aspect of the Services affected by the material breach, may be terminated immediately. The term “material breach” shall be interpreted from the perspective of a reasonable business person engaged in Internet business.
DASP may suspend or terminate this Agreement, or particular aspects of the Services covered by this Agreement, at DASP’s sole and exclusive discretion, if:
7.1. DASP receives a complaint that Customer has violated this Agreement, or any Incorporated Agreements, and Customer has not complied with DASP’s recommended course of action;
7.2. a Third Party ceases making aspects of the Services available to DASP, or continuing to provide the Services becomes commercially unreasonable;
7.3. a Beta period ends.
8.1. Mutual Warranties
Customer and DASP each agree that they have the requisite authority to enter into this Agreement, and that neither is prohibited from entering into it.
8.2. DASP Warranties
DASP warrants that it will use reasonable efforts to deliver the Services to Customer as set out on the web page describing the Services upon the Effective Date.
8.3. Customer Warranties
Customer represents and warrant to DASP that: (i) Customer has the experience and knowledge necessary to use the Services; (ii) Customer understands and appreciates the risks inherent to Customer and Customer’s business that come from accessing the Internet; (iii) Customer will provide DASP with material that may be implemented by DASP to provide the Services without extra effort on DASP’s part; (iv) Customer has sufficient knowledge about administering, designing and operating the functions facilitated by the Services to take advantage of the Services; (v) in entering into this Agreement, and performing the obligations set out in it, Customer will not violate any applicable laws and regulations; and/or (vi) Customer will pass through the terms of DASP’s Acceptable Use Policy to End Users, and will be bound to End Users by a contract that is no less restrictive than this Agreement.
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 8.2, DASP HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND TITLE. DASP DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ADVICE GIVEN IN A COMMUNITY FORUM IS RELIABLE, ACCURATE OR WILL NOT DAMAGE CUSTOMER. DASP IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER, OR STORED BY CUSTOMER OR AN END USER VIA THE SERVICES PROVIDED BY DASP. DASP SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY DASP. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO DASP SHALL BE PASSED THROUGH TO CUSTOMER, NOR SHALL CUSTOMER CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES. SOME STATES DO NOT ALLOW DASP TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO CUSTOMER, CUSTOMER’S WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR THAT INDIVIDUAL ASPECT OF THE PARTICULAR SERVICE.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION CUSTOMER MAY HAVE RECEIVED FROM DASP OR ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS, OR AFFILIATES. CUSTOMER MAY NOT RELY ON SUCH INFORMATION.
10. Limitation of Liability
IN NO EVENT WILL DASP’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY DASP FROM CUSTOMER FOR THE 1-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM “DASP” SHALL BE INTERPRETED TO INCLUDE DASP’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH DASP.
CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD DASP OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY CUSTOMER, ANY OF CUSTOMER’S END USERS, OR ANY OTHER THIRD PARTY. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, AND APPLY EVEN IF DASP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CUSTOMER AGREES THAT IN THOSE JURISDICTIONS, DASP’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
DASP shall indemnify and hold Customer harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against Customer so far as it is based on a claim that a Service infringes any issued U.S. patent. This indemnification provision is expressly limited to parts of the Service that are fully owned by DASP. It does not extend to third party products or services, even if incorporated into the Service. This paragraph will be conditioned on Customer notifying DASP promptly in writing of the claim and giving DASP full authority, information, and assistance for the defense and settlement of that claim. Customer shall have the right to participate in the defense of the claim at Customer’s expense. If such claim has occurred, or in DASP’s opinion is likely to occur, Customer agrees to permit DASP, at its option and expense, either to: (i) procure for Customer the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate DASP’s obligations (and Customer’s rights) under this Agreement with regard to such Service and refund to Customer the price originally paid by Customer to DASP for the Service, or the Fee actually received by DASP from Customer for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Customer agrees to indemnify, defend and hold harmless DASP and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer’s use of the Services or an End User or visitor’s use of the Services through Customer; (ii) any violation by Customer, an End User, or visitor to Customer’s site, of any of DASP’s policies; (iii) any breach of any of Customer’s representations, warranties or covenants contained in this Terms and Conditions; (iv) any acts or omissions by Customer; and/or (v) any posts by Customer in the Community Forum. The terms of this section shall survive any termination of this Agreement.
12. Intellectual Property
12.1. DASP’s Intellectual Property
DASP, or its third party vendors, retains ownership of all intellectual property rights in the Services. DASP grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free license to use technology provided by DASP solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out herein, this license does not grant any additional rights to Customer. All right, title and interest in DASP’s technology, or that of its third party vendors, shall remain with DASP or its licensors. Customer is not permitted to circumvent any devices designed to protect DASP’s, or its licensor’s, ownership interests in the technology provided to Customer. In addition, Customer may not reverse engineer this technology.
Any license provided to Customer is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
12.2. Customer’s Intellectual Property
Customer grants to DASP, and, if required, DASP’s third party vendors, a non-exclusive, non-transferable, worldwide, royalty-free license to use Customer’s intellectual property (or that of its third party vendors and/or End Users) for the limited purpose of providing the Services to Customer. This license terminates upon termination or expiration of this Agreement. Except for the license rights granted herein, this license does not grant any additional rights to DASP. All right, title and interest in Customer’s technology, or that of its third party vendors, shall remain with Customer or its licensors. DASP is not permitted to circumvent any code designed to protect Customer’s, or its licensor’s, ownership interests in the technology provided to DASP. In addition, DASP may not reverse engineer this technology.
12.3. Licenses Customer is Required to Have
Other than as set out in paragraph 12.1 above, Customer is solely responsible for obtaining all licenses and other intellectual property rights necessary to use the Services (Third Party Licenses). Upon written request, Customer agrees to provide DASP with reasonable assurances that it has received the Third Party Licenses.
13.1. Notices will be sent to Customer at the address in the Customer Information.
Notices regarding this Agreement and other DASP policies should be directed to:
DiscountASP.NET Legal Notices
Attention: Michael J. Phillips
417 East Huntington Drive
Monrovia, CA 91016
13.2. Force Majeure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event.
13.3. Choice of Law, Jurisdiction, Venue and Statute of Limitations
The parties agree that all disputes shall be brought before the U.S. District Court for the District of Los Angeles located in Los Angeles, California (District Court). The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of California, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
13.4. No Waiver.
No waiver of rights under this Agreement, or any DASP policy, or other agreement between Customer and DASP, shall constitute a subsequent waiver of this or any other right under this Agreement.
This Agreement may be assigned by DASP. It may not be assigned by Customer. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
13.7. No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
The provisions of paragraphs 9, 10, 11, 13.3, 13.6, 13.7 and 13.8 will survive the expiration of this Agreement or its termination for any reason.
Last Update: May 8, 2017