Terms of Service
These terms are made by and between 01Trend, Inc. ("01Trend") and you ("You", "Your", or "Customer"). Any use of 01Trend software, hardware, network or services by You constitutes of Your agreement to be bound by these Terms of Service, 01Trend Use Policies and 01Trend Privacy Statement, which are referred collectively as Master Guideline. 01Trend software, 01Trend hardware, 01Trend network and 01Trend services are referred entirely as 01Trend Services in this document. If there is a written and signed contract between 01Trend and You, the signed contract will take priority if there is any conflict on a particular issue between the signed contract and this Master Guideline. If an issue not mentioned or not clearly explained in the written and signed contract, the Master Guideline will be used as the only documents to be based on.
If You do not agree on the Master Guideline, Your sole and exclusive remedy is to terminate the use of 01Trend Services, Your account with 01Trend, or/and deinstall any 01Trend software. If You are a prepaid customer and has a term of commitment, you can not terminate Your account unless the Master Guideline or any change of it is material or adverse to You.
The latest version of Master Guideline can be found at 01Trend web site http://www.01trend.com/terms Please review the Master Guideline prior to using any 01Trend Services, or installing any 01Trend software. The Master Guideline may be changed since Your last visit of 01Trend web site. 01Trend may change the Master Guideline, in whole or in part, at any time. The posting of the updated Master Guideline constitutes the notice to You of any such change although 01Trend may choose to use other types of notice of the change. Any change of Master Guideline takes immediate effect upon notice. 01Trend will use reasonable efforts to notify you thirty days in advance when the change is material (for example, price increase, etc). Your continued use of 01Trend Services constitutes of your agreement on the changed Master Guideline.
Notification from 01Trend to you is based on Your contact information given to 01Trend by You. It is Your responsibility to maintain your correct contact data with 01Trend. 01Trend may notify you by using any one of of the communication tools such as email, mailing address, phone or fax.
1. GENERAL
This Guideline applies to Your purchases of 01Trend Services ordered by You from 01Trend. It applies also to your payment to 01Trend, which is considered as Your purchase of 01Trend Services. It applies also to your continued use of 01Trend Services after more than one invoices are sent to You, which is considered as Your purchase of 01Trend Services. It applies also to your continued use of 01Trend Services after more than one billing cycle even if you may not receive the invoices sent from 01Trend, which is considered as Your purchase of 01Trend Services. Please refer to 01Trend's available services at http://www.01trend.com/services and Your order form(s) (if signed by both parties) for the descriptions, rates, charges, discounts, and other terms and conditions applicable to the Services. All Available Services are subject to availability. All order requests require Your completion of 01Trend's then-current order form on paper or online.
2. ACCEPTANCE
01Trend will provision the Services after it receives and accepts ("Acceptance"): (i) This Master Guideline and the purchase of 01Trend services (an order form signed by you or submitted online by You, or any other form of purchase); (ii) credit approval; and (iii) any payment of amounts due under each order form. Commencement of Service shall not be a waiver of 01Trend's right to require any of the above.
3. TERM
The term of this Master Guideline shall commence on the Effective Date and continue until the end of the latest initial or renewal term set forth in any order form. Unless otherwise specified on an order form, the initial term of any order form shall commence on the Service Ready Date and shall continue until the end of the term set forth in that order form. The "Service Ready Date" is the later to occur, or (i) execution of the order form by both You and 01Trend; or (ii) the date that 01Trend provides written notice to You, including by e-mail to Your Primary Contact on the order form, that it is ready to provide the Services. If no term is specified in an order form, then the term shall automatically renew for one (1) year starting on the Service Ready Date. After any initial or renewal term, the order term shall automatically renew for the same previous term at 01Trend's then-current rates unless either party provides the other party written notice of termination at least thirty (30) days prior to the expiration of the initial term or any renewal term.
The term will not apply if it is software development. However, a defined test period has to be defined in the order form after software delivery. This test period will be one month ( 1 month) if not specified in the order form. After the trial use of the test period without major problem, the software development will be considered as satisfactory and final. Customer should pay the rest of the full amount due without any delay.
If no order form is signed, the term will be considered as monthly. A written notice is required at least thirty (30) days before any termination. The monthly rate can be higher than the rate of any longer term.
4. SERVICE CHARGES, BILLING AND PAYMENT
You will pay all non-recurring charges set forth on a order form in advance of any provision of Services under that order form. Billing with respect to recurring charges on any order form shall commence on the Service Ready Date and will occur on a monthly basis. 01Trend may adjust your billing day to make the recurring charges in a calendar month or a defined period. Any service charges will be prorated for the extra days of the month. You will pay all recurring charges in advance of the month in which such Services are provided. All amounts due shall be paid in US Dollars. If 01Trend's invoice is not paid before the due date: (i) a late fee of 5% on the unpaid amount or a $10 flat fee (whichever is higher) will be added to the total amount due; and (ii) 01Trend may suspend the Services immediately without notice until all amounts owed have been paid. To reactivate Service, 01Trend may require a reconnection fee and other charges.
You agree to pay to 01Trend all costs incurred by 01Trend in making modifications or improvements to Your ordered services requested by You.
If you dispute in good faith any portion of an invoice based on a billing error, You may withhold the disputed amount, provided that You submit to 01Trend, within thirty (30) calendar days of invoice date, a written statement adequately supporting Your dispute. If 01Trend determines in good faith that there is no error, You agree to immediately pay the disputed amount. 01Trend will determine in good faith if there is an invoice error and will issue a credit to You if it determines there was an error. You are responsible for any costs 01Trend incurs in enforcing collection, including reasonable attorney's fees, court costs and collection agency fees.
All sales are final. There is no refund.
5. CREDIT APPROVAL DEPOSITS AND SECURITY INTEREST
You agree to provide 01Trend with credit information as requested, and the delivery of Service is subject to initial credit approval. Your execution of this Guideline authorizes 01Trend's continuing credit review and approval. 01Trend shall have the right to require You to make one or more deposits as a condition of 01Trend's continuation of Service, which deposit or deposits will be held by 01Trend as security for payment of Your Service Charges. No interest shall be earned on deposits. At such time as the provision of Service to You is terminated, the amount of the deposit will be credited to Your account and any credit balance will be refund. 01Trend reserves the right to immediately terminate Your account in the event Your credit is not approved to secure payments hereunder. You hereby grant 01Trend a security interest in any equipment (including, but not limited to, hardware, software, etc) placed by You in 01Trend leased data center cage and agree that 01Trend may perfect such security interest by taking possession of Your Equipment in the event of Default by You, all without being liable to prosecution or for damages.
A prepay customer has a term of commitment for the paid period. No refund is available if there is an early termination.
6. YOUR OBLIGATION
You represent and warrant that: (i) You will comply with all applicable laws, regulations and codes and will not use the Services in any manner which is in violation of any law, code, governmental regulation, or the Use Policy detailed in next paragraph below; (ii) "Your Data" (as defined below) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right; and (iii) Your Data will not violate any laws to which You or 01Trend may be subject or constitute a defamation or libel of 01Trend or any third party and will not result in the obligation of 01Trend to make payment of any third party licensing fees. "Your Data" means the text, data, images, sounds, photographs, illustrations, graphics, programs, code and other materials transmitted or stored by You, Your customers and /or persons under Your control through any Service provided by 01Trend.
You agree to comply at all times with 01Trend's Use Policies as amended by 01Trend from time to time (http://www.01trend.com/UsePolicies). Any amendments will take effect upon posting of the revised Use Policies. 01Trend reserves the right to immediately take corrective action, including disconnection or discontinuance of any and all Services, or to terminate Your account in the event of notice of possible violation by You of the Use Policies.
You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. Government and any country or organization of nations within whose jurisdiction You operate or do business.
Other than taxes based on 01Trend's net income, You will pay any and all applicable foreign, federal, state and local taxes, including without limitation, all use, sales, value-added, surcharges, excise, franchise, property, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax-related surcharges related to the Services, whether charged to 01Trend or You, including any and all fees and taxes which may be imposed by any Internet registration authority, for the registration and maintenance of Your domain name(s) and/or Internet address(es).
7. DISCLAIMER OF WARRANTIES
Warranties. ALL SERVICES ARE PROVIDED "AS IS". 01Trend MAKES NO WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A BOURSE OF DEALING, USAGE OR TRADE PRACTICE, OR NON-INFRINGEMENT OF THE SERVICES OR ANY EQUIPMENT 01Trend PROVIDES NEITHER 01Trend, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERIVCES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ASSESSING YOUR OWN INTERNET NEEDS AND THE RESULTS TO THE OBTAINED THEREFROM AND THAT 01Trend EXERCISES NO CONTROL WHATSOEVER OVER THE MERCHANDISE, INFORMATION AND SERIVCES OFFERED OR ACCESSIBLE ON THE INTERNET.
No Control Over Content. You acknowledge and agree that 01Trend exercises no control over, and accepts no responsibility for, the content of the information passing through 01Trend's network or the Internet. You assume responsibility for Your use of the Services or, software provided by 01Trend, if any, and the Internet. You understand and agree further that the Internet contains materials some of which are socially inappropriate or may be offensive; and is accessible by persons who may attempt to breach the security of 01Trend network(s). 01Trend has no control over and expressly disclaims any liability or responsibility whatsoever for such materials or actions. You, Your users and Your customers access the Service at their own risk. 01Trend is not liable for the content of any data transferred either to or from You or stored by You or any of Your customers via the services provided by 01Trend.
Disclaimer of Third Party Actions and Control. 01Trend does not and cannot control connectivity, or the flow of data to or from 01Trend's equipment and facilities or other portions of the Internet. Such connectivity depends in large part on the performance of Internet or access services provided or controlled by third parties. At times, actions or inactions caused by these or other third parties can produce situations in which Your connections to the Internet portions thereof may be impaired, interrupted or disrupted. Although 01Trend will use commercially reasonable efforts to take actions appropriately to remedy and avoid such events, 01Trend cannot guarantee that they will not occur. Accordingly, 01Trend shall not be liable for such events.
Backup Files and Processing. If You do not have the backup service specificly ordered by you, signed and provided by 01Trend, you are responsible for backing up Your files and also Your customers' files. 01Trend does its automatic backup. However, 01Trend does not guarantee the existence, accuracy, or regularity of its backup services. For a fee, You can request the restoration of files backed up by 01Trend.
Server Security. 01Trend will maintain the best possible security of its shared servers through the installation of applicable software upgrades, patches, and updates as they become available, if safe for the production environment. 01Trend reserves the right to remove or disable third party applications which has a security risk to its shared servers. Shared hosting Customer is responsible for maintaining the security of passwords associated to their accounts. 01Trend is not responsible for security breaches resulting from compromised passwords or third party software installed by Customer.
8. INDEMNIFICATION
You agree to indemnify, save harmless, and defend 01Trend and all employees, officers, directors and agents of 01Trend from any third party claim, damages, losses, liabilities and expenses (including reasonable attorneys' fees) arising out of or relating to this agreement or the use of the Services by You or Your Customers, including but not limited to claims alleging: (i) infringement of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the Use Policy; (iv) disruption or interruptions in Service, or failure of the Service to perform as expected, or (v) any other damage arising from Your breach of this Agreement or Your use of the Services.
9. LIMITATION OF LIABILITY
Damages EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 ABOVE, IN NO EVENT WILL WITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF 01Trend'S FAILURE TO MEET AN AVAILABILITY AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE THE OUTAGE CREDITS AVAILABLE AS SET FORTH HEREIN. THE OUTAGE CREDITS IS BASED ON THE NUMBER OF OUTAGE DAYS OVER 30 DAYS AND PRORATED ACCORDINGLY WITH THE MONTHLY RECURRING CHARGES. THAT CREDITS HAVE TO BE APPLIED TO THE NEXT MONTH CHARGES. THE MAXIMUM OUTRAGE CREDITS CAN NOT EXCEED ONE THIRD OF THE MONTHLY RECURRING CHARGES.
Maximum Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY ORDER FORM, 01Trend'S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO A FLAT THREE HUNDRED DOLLARS ($300), OR ONE THIRD OF THE TOTAL AMOUNT PAID BY YOU TO 01Trend FOR THE AFFECTED SERVICE FOR THE ONE (1) MONTH PRIOR TO THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LESS.
10. DEFAULT AND TERMINATION
01Trend may suspense Your use of any Service without any notice if Your obligation of payment is not met. 01Trend may terminate this agreement immediately upon written notice to You for: (i) Your failure to perform or observe any term, covenant or condition of this Agreement, including payment obligations, 01Trend's Use Policies; (ii) Your violation or threatened violation of the Use Policies; (iii) Your failure to perform or observe any term, covenant of condition of any other agreement between You and 01Trend or petition in bankruptcy or proceeding relating to insolvency (each, a "Default"). Either party may terminate this Agreement if the other party materially breaches any term or condition of this Agreement and fails to cure such breach, if capable of cure, within thirty (30) days after receipt of written notice of the same. If You terminate this Agreement without cause prior to the end of the initial or renewal Agreement Term or any order form without cause prior to the end of the initial or renewal term, or 01Trend terminates this Agreement because of a Default by You, You agree to pay 01Trend a termination charge for each open order form equal to 100% of your monthly recurring charges for such order form multiplied by the number of months remaining in the term. The parties specifically agree that the damages which 01Trend would incur arising from any breach or early termination of this Agreement by You are based upon future facts and conditions which are difficult for the parties to presently predict, anticipate, ascertain or calculate. The parties further agree that such liquidated damages, as determined herein, are based upon the best efforts of the parties to estimate the nature and amount of 01Trend's actual damages, are not penal in nature, and are intended to place 01Trend in the same position it would have achieved, had this Agreement been fully performed by the parties according to the original terms. Upon the effective date of expiration or termination of this Agreement, (a) 01Trend will immediately cease providing the Services, and (b) any and all payment obligations of You under this Agreement will become due immediately. Termination by You without cause or by 01Trend does not terminate Your obligations under this Agreement, including the obligation to pay charges as set forth herein, including past due amounts and interest thereon. In the event this Agreement is terminated for any reason, all order forms shall automatically terminate as of the effective date of this Agreement's termination, unless the parties mutually agree in writing not to terminate specific order forms. In the latter case, such non-terminated order forms shall continue to be governed by this Agreement until the order form is terminated or concluded.
11. MODIFICATION OF SERVICE/PRICING
All pricing and Services are subject to change immediately, upon written notice to You, to accommodate: (i) 01Trend's underlying or third party costs including but not limited to costs related to network maintenance and power, and /or (ii) 01Trend's ability to accommodate evolving technology, increased network demand, and providing enhanced services. In addition, all pricing and rates specified in an applicable order form are subject to change for any reason upon thirty (30) calendar days written notice to You; provided, that in the event of such pricing increase, You may terminate the subject Service without liability for any associated termination charges within thirty (30) days of your receipt of notice of such a pricing increase, whether by invoice or otherwise, by providing 01Trend with thirty (30) days written notice. 01Trend will use reasonable efforts to notify You of any planned changes to 01Trend's network or facilities that affect the Services provided herein. 01Trend will not be responsible if any changes in Services, the network or the facilities cause Your hardware or software to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software. Further, upon notice to You, 01Trend may modify or suspend Your service as necessary to comply with any law or regulation as reasonably determined by 01Trend in the event that it becomes necessary to relocate Your ordered services. You agree to cooperate in good faith with 01Trend to facilitate such relocation. 01Trend agrees to be responsible for any costs and expenses incurred by 01Trend in connection with such relocation and will use commercially reasonable efforts to minimize and avoid any interruption to Your Services.
12. MISCELLANEOUS
No failure to exercise and no delay in exercising any right, remedy, or power hereunder will operate as a waiver thereof.
01Trend will not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, earthquake, or other acts of God, strike or other labor disturbance, cable cuts, interruption of or delay in transportation, unavailability of or interruption or delay in power supply, telecommunications or third party services, failure of third party software or hardware, inability to obtain raw materials, supplies, or power/equipment needed for provision of the Services. This Agreement and the Services are not intended to provide disaster recovery services for You.
This Agreement will be binding upon and inure to the benefit of You, 01Trend and either party's successors, and assigns. 01Trend may assign this Agreement without Your consent. You may not assign this Agreement without the prior written consent of 01Trend, which consent shall not be unreasonably withheld.
01Trend and You agree that there are no third party beneficiaries to this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement will remain in full force and effect, provided that this Agreement, as modified, does not materially change the benefits and obligations of the parties.
In the event an attorney is retained by either party to enforce the term of this Agreement or to collect any money due to collect money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney's fees, court costs, costs of investigation and other related expenses incurred in connection therewith.
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between 01Trend and You. Neither 01Trend nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
This Agreement, and any other document or agreements specifically identified in this Agreement, contain the full agreement of the parties and superseded any and all previous representations, understandings or agreements whether oral or written and all contemporaneous oral representations, understanding or agreements. To the extent that the terms and conditions of any order form are inconsistent with the terms and conditions of this Agreement, this Agreement will control.
If You use the dialup service provided by 01Trend, please make sure the access number you dial into is local and free to your location. You can verify this with your phone company. It is you who is responsible for the phone call from your location to the dial access number facility. It is You who is responsible for any cost these calls may make. 01Trend provides you the internet access, but it does not provide You the phone calls from Your location to the dial access number facility.
This Agreement will be governed by the laws of the State of California without regard to its conflicts of laws provisions. Any action arising out of this Agreement shall be filed exclusively in the courts of Orange County, California.