Triple8 Network, Inc. Terms of Service
This Triple8 Network, Inc. ("Triple8") Terms of Service ("TOS") sets out the terms and conditions governing the relationship between Triple8 and its users, customers and subscribers (collectively, "Customers" and individually as used herein, "you"), the purchase and use of any Triple8 products and services by Customers, and the access to and use of the Triple8 web site ("Web Site"). You accept and agree to be bound by this TOS by browsing, accessing or using the Web Site or purchasing or subscribing to any of Triple8's products and services, including by clicking "ACCEPT" to this TOS or any amended TOS (as described below), in each case, regardless of how your Triple8 Customer account is set up (e.g., via phone, online or email).
Please read this TOS (including all incorporated terms, conditions, rules, guidelines and requirements) carefully before using or subscribing to any of Triple8's products and services. If you do not agree to this TOS, do not use or subscribe to any of its related products and services or participate in any Web Site activities.
A. Products and Services
Triple8 may provide one or more of the following products and services (collectively, "Services") to its Customers:
- Website Hosting
- Virtual Desktops
- Virtual Private Servers
- Dedicated Servers
- Colocation and RackSpace
- Bandwidth, IP transit and IP transport
- Filemaker Database Hosting
- SQL Server Database Hosting
- Email Hosting
- SPAM Filtering and Anti-Virus protection
- Backup and Remote Backup Services
- Domain Registration
- SSL Certificates
- DNS Hosting
Triple8 agrees to provide the Services in accordance with the applicable specifications of the applicable Service Level Agreement.
For more information on each of the above products and services, including the applicable Service Level Agreement(s), review the applicable descriptions accessible from the Web Site home page.
I. Customer Account Set-up
New Domain Accounts:
Generally all new webhosting accounts involving new domains will be set up and entered into Triple8's DNS servers within three (3) to five (5) business days, however, this process may sometimes require up to seven (7) business days. If the new domain is registered by the Customer, there will be no handling fee. If the domain is registered by Triple8 on your behalf upon request, a handling fee may be incurred. Customer agrees to pay any such handling fee, as described below.
Transfer of Domains:
New webhosting accounts which involve the transfer of a domain from another provider to Triple8 will require a minimum of seven (7) days to be set up and entered into Triple8's DNS servers. In some cases, such transfers may take up to sixty (60) days. If the transfer of the domain is made by Triple8 on your behalf upon request, a handling fee may be incurred. Customer agrees to pay any such handling fee, as described below. If the Customer cancels the webhosting service during the domain transfer period for any reason, such handling fee shall remain payable by Customer.
II. Collocation of Customer Equipment:
Except as otherwise provided herein, Customer is responsible for all aspects of installation and removal (including clean-up) of any Customer equipment or property (collectively, "Customer Equipment") at Triple8's collocation premises, including bringing all necessary and related tools and packaging materials. Customer will install Customer Equipment in the Customer's collocation space after obtaining the appropriate authorization from Triple8 to access the premises. Customer will remove all of its tools and packaging for Customer Equipment promptly after installation and/or removal. If Customer engages any third party to deliver, install or remove Customer Equipment, Customer agrees it will be solely responsible for the acts of such third party. If Triple8 has to remove any Customer Equipment tools or packaging or otherwise clean up after any Customer activity at the collocation premises, Triple8 may invoice Customer the applicable cost for same and Customer agrees to pay all Triple8 charges associated with such removal or clean-up.
Within ten (10) days after any termination of the related Services, Customer will remove all Customer Equipment from the collocation premises and return the Customer's collocation space to the same condition as it was prior to Customer's installation. At Customer's request and cost, payable in advance, Triple8 will remove and package Customer Equipment and place it in a designated area for pick-up by customer. If Customer does not remove, or request Triple8 to remove, such Customer Equipment within the ten (10) day period, Customer agrees that such Customer Equipment thereafter will be deemed abandoned to and recoverable by Triple8 ("Abandoned Equipment") without the need for further notice to Customer. Triple8, at its option, may (i) remove and store any and all Abandoned Equipment or return Abandoned Equipment to the Customer at Customer's cost, (ii) dispose of the Abandoned Equipment without liability for any related damages, (iii) sell the Abandoned Equipment at any public or private sale, or (iv) assume ownership of the Abandoned Equipment ((i) through (iv), collectively, "Disposal Rights").
Notwithstanding the foregoing, Triple8 reserves the right to deny Customer the right to remove Customer Equipment from the collocation space and premises if Customer is not current in the payment of its undisputed fees properly invoiced to Customer, and, in such event, to exercise any of Triple8's Disposal Rights.
Customer expressly assumes all risk of loss to Customer Equipment in the collocation space. Customer shall be liable to Triple8 or its other customers for any damage to the collocation space or premises or to the equipment of Triple8 or its other customers, as applicable, caused by Customer, Customer Equipment or any third party of Customer.
If during the Term, Customer removes significantly all of its Customer Equipment from the collocation space, Customer will continue to pay the applicable Recurring Charges through the end of the agreed term of services, as further described below.
III. Support Services:
Triple8 will provide 24 x 7 technical support to its Customers via email and/or telephone and/or chat in accordance with the applicable Service Level Agreement.
Triple8 provides support related to your server or virtual site physical functioning. Triple8 does not offer support for third party application-specific issues, such as cgi programming, html or any other similar issue. Triple8 does not provide technical support for your customers.
Email email@example.com for assistance. If you are able to get online and have other questions, the answers may be on our support page at http://www.Triple8.net/support/ - we encourage you to check there first. In addition, the Help files in the program you are using may have the answer to your question, so please investigate these resources before calling Triple8 technical support.
B. Acceptable Use Policy
Triple8's Acceptable Use Policy sets out certain general and specific permissions, restrictions and limitations with respect to Customers' use of any of Triple8 products and services. All Customers, including any registered users of Triple8's Internet-based Services, those who access any Services but do not have their own account(s), and those who pay a service fee to subscribe to the Services, must comply with this AUP.
I. General Requirements:
Triple8 is under no obligation to review any Customer's account activities to determine if a violation of the AUP may have occurred, nor does Triple8 assume any responsibility to monitor or police Internet-related activities by Customers or their customers.
Under normal circumstances, Triple8 does not actively monitor Customer activity in its use of the Services, except for measurement of system utilization and for preparation of invoices, nor does Triple8 exercise editorial control over the content of any web site, e-mail transmission, newsgroups, or other material created or accessible over or through the Services (collectively "Customer Content"), except for certain Triple8 websites and forums. Without limiting the foregoing, Triple8 reserves the right at all times to block or remove any Customer Content that, in Triple8's sole discretion, may be illegal, may subject Triple8 to civil or criminal liability, and/or may violate this AUP, including by complying with any notice of infringement pursuant to the Digital Millennium Copyright Act of 1988. Customer understands that Customer is responsible for all Customer Content located on its website or servers. Customer acknowledges that Triple8 may disclose to and cooperate with governmental, regulatory and legal authorities and/or other third parties in the investigation of any suspected or alleged crime or civil wrongdoing by any Customers or their customers.
If any Customer account is used to violate the AUP or TOS, including any violation of any activity, account, security and/or network performance restrictions described below, the Triple8 reserves the right to immediately suspend and/or terminate the account and/or the applicable Services without prior notice. Triple8 may notify Customer of any observed inappropriate activity that violates the AUP, including any necessary corrective action by Customer, however, significant or repeated violations of the AUP will result in immediate suspension and/or termination of Services in Triple8's sole discretion. Triple8's failure to identify any violation or to enforce its suspension and /or termination policy, for whatever reason, shall not be construed as a waiver of Triple8's right to do so at any time. All sub-networks, resellers and managed servers of Triple8 must adhere to the TOS and AUP. Each of same will be held responsible for the actions of its customers that violate the TOS and AUP. As a Customer of Triple8's network, you must use the Services and your Internet access responsibly. If you have any questions regarding this policy, please contact us at abuse@Triple8.net.
II. Impermissible Activities:
The following constitute violations of this AUP:
1. Illegal Use: Use of the Triple8's Services for illegal purposes or in support of illegal activities.
2. Harm to Minors: Use of the Triple8 Services to harm, or attempt to harm, minors in any way, including, but not limited to, child pornography.
3. Threats: Use of the Triple8 Services to transmit any material (including by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property.
4. Harassment: Use of the Triple8 Services to transmit any material (including by e-mail, uploading, posting or otherwise) that harasses another.
5. Fraudulent Activity: Use of Triple8 Services to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as "pyramid schemes," "ponzi schemes," and "chain letters."
6. Forgery or Impersonation: Use of the Triple8 Services to add, remove or modify any identifying network header information in an effort to deceive or mislead. Attempting to impersonate any person by using forged headers or other identifying information is prohibited. (The use of anonymous remailers or nicknames does not constitute forgery impersonation hereunder.)
7. Unsolicited Commercial E-mail / Unsolicited Bulk E-mail (SPAM): Use of the Triple8 Services to transmit any unsolicited commercial or unsolicited bulk e-mail is prohibited. Upon detection or notification of an alleged violation of our SPAM policy, Triple8 may restrict Customer access to the network to prevent further violations. If a Customer is found to be in violation, Triple8 may, in its sole discretion, restrict, suspend or terminate Customer's account without prior notice. Any Customer hosting websites or services on their server that support spammers or cause any of Triple8's internet protocols to be listed in any spam database will have their server immediately removed from Triple8's network without prior notice. The server will not be reconnected until such time that the offending Customer agrees in writing to remove all traces of the offending material immediately upon reconnection; in any such case, hereby agree to allow us access to your server to confirm that all such material has been removed. A second violation will result in the immediate and permanent removal of the server from Triple8's network without prior notice, and imposition of applicable administrative fees and other costs incurred by Triple8 in the event of any violation of this spamming restriction and or server reconnection.
8. E-mail / News Bombing: Use of the Triple 8 Services to intentionally impede another person's use of electronic mail services or news.
9. Usenet SPAMing: Use of the Triple8 Services for the posting of messages or commercial advertisements that violate the rules, regulations, or charter of any newsgroups or mailing list.
10. Unauthorized Access: Use of the Triple8 Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Triple8's or another entity's computer software or hardware, electronic communications system, or telecommunications system.
11. Intellectual Property Infringement: Use of the Triple8 Services to transmit any material (including by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other intellectual proprietary or publicity rights of any third party, including the unauthorized copying of copyrighted material, the unauthorized digitization and distribution of photographs from magazines, books, or other copyrighted sources, or the unauthorized transmittal of copyrighted software.
12. Collection of Personal Data: Use of the Triple8 Services to collect, or attempt to collect, personal or personally identifiable information about third parties without their knowledge or consent.
13. Network Disruptions and Unfriendly Activity: Use of the Triple8 Services for any activity which interferes with, disrupts or affects the ability of other customers, Internet users or systems to use the Services or the Internet, including "denial of service" (DOS) attacks against Triple8, another network host or individual user, or it or their users, services or equipment, such as "flooding" of networks, deliberate attempts to overload a service and attempts to "crash" a host.
14. Distribution of Viruses: Use of the Triple8 Services to intentionally distribute software or code that attempts to and/or causes damage, harassment, or interference to any persons, data, and/or computer systems.
15. Inappropriate Use of Server or Software: Use of the Triple8 Services with any software or device that would facilitate a continued connection, i.e., pinging, while using Triple8 Services, or use of your dedicated rack or virtual site to publish material that is unlawful. For purposes of this AUP, "material" refers to all forms of communications, including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos, etc.), executable programs, video recordings, and audio recordings.
16. Violation of Triple8 Virtual Accounts: Use of the Triple8 Services to host IRC servers on Virtual Server Accounts.
In addition, any activity by a Customer that violates any law or the rights of any third party shall be deemed a violation of this AUP.
III. Account Security Requirements and Restrictions:
You acknowledge and agree that as a Customer you are responsible for any activity on or misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest or employee, or any authorized or unauthorized user. It is the Customer's responsibility to ensure that your network is configured in a secure manner. You must adopt appropriate security measures and take appropriate steps to ensure that others do not gain unauthorized access to your account. Your password provides access to your account. It is your responsibility to keep your password secure.
The following activities are also prohibited:
You may not use your account to breach, or attempt to breach, the security of another account or attempt to gain unauthorized access to another network or server. You may not share your password and account access with unauthorized users.
You may not obtain or attempt to obtain another user's account password without permission.
You may not, through action or inaction, allow others to use your network for illegal or inappropriate activity. You may not permit your network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner. Unauthorized entry and/or use of another's computer system or attempt to access the accounts of others, or penetrate security measures of other systems, whether or not the intrusion results in corruption or loss of data, is prohibited.
You may not attempt to circumvent user authentication or security of any host, network or account, including accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, or probing the security of other networks. Use or distribution of tools designed for compromising security, including password guessing programs, cracking tools or network probing tools, is prohibited.
IV. Network Performance Limitations
Triple8's Customer accounts operate on shared resources. Excessive use or abuse of these shared network resources by one Customer may have a negative impact on all other Customers. Misuse of network resources in a manner which impairs network performance is prohibited. Further, you are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other customers or the performances of Triple8 systems or networks. Triple8 reserves the right to place appropriate limits on such activities.
V. Reporting Violations OF Triple8's AUP
If anyone believes that there is or has been a violation of this AUP, please email Triple8 at abuse@Triple8.net.
If available, please provide the following information:
The IP address used to commit the alleged violation
The date and time of the alleged violation, including the time zone or offset from GMT
Information about the alleged violation
E-mail with full header information may provide all of the above, as may system log files. Other situations may require different methods of providing the above information.
VI. Suspension and Termination
In the event of a violation of the TOS, including the AUP, Triple8 may immediately terminate Customer without prior notice, including all Customer accounts.
Without limiting the foregoing, Triple8 may take any one or more of the following actions in its sole discretion:
Issue written warnings to the Customer (including via email)
Suspend the Customer's account(s)
Terminate the Customer's account(s)
Invoice the Customer for administrative costs and/or reactivation charges
Initiate legal action to prevent further violations and/or to seek monetary damages caused by any violations
Generally, in the event of a first violation, Triple8 will send an email to the Customer informing them of the violation. The applicable Service will be subject to a temporary suspension, at Triple8's sole discretion, pending Customer's agreement in writing to refrain from any further violations. In the event of a second violation, Triple8 may immediately suspend or terminate the applicable Services without prior notice.
Triple8 also reserves the right to drop the section of Internet Protocol ("IP") space involved in Spam or DOS violations, including if open relays occur on your network or a customer's network, or if DOS attacks are originating from your network. In certain cases, we may have to exercise this right before notifying you, however, if we do this, we will contact you as soon as practical thereafter.
In addition, Triple8 reserves the right to suspend network access to any Customer if, in the judgment of Triple8's network administrators, the Customer's server is the source or target of the violation of any terms of the AUP or TOS. If activity in violation of this TOS is detected, all accounts of the applicable Customer(s) may be suspended. The Customer will not be credited in any amounts for the time the Customer's servers were suspended.
VII. Account Maintenance
Each Customer agrees to promptly update as required the Customer's account information, including valid contact information (i.e., email address, telephone number(s), name and address (including street, city, state, country and zip/postal code)) and, for recurring or subscription Services, valid payment information (i.e., credit card number, billing address and expiration date). Each Customer agrees that Triple8 may send any notices (including administrative and account renewal and termination notices) and otherwise communicate with the Customer (including with respect to any updates to the TOS) by email to the email address provided by the Customer. Triple8 shall not be responsible or liable if the Customer does not receive any communication or notices from Triple8 due to incorrect or outdated email address provided by Customer. Each Customer hereby warrants that any such account information provided by them to Triple8 is and will be true and accurate.
C. Rates, Charges and Payments
The rates and charges for the Services are posted on the applicable Triple8 website for each Service. Each Customer subscribing to a Service acknowledges that the nature of the Services furnished and the initial rates and charges have been communicated to them. Customer acknowledges and understands that the Triple8 may prospectively change the specified rates and charges from time to time. Triple8 shall notify Customer in advance of any changes to the rates and charges.
Charges and Payment:
Establishment and provision of Services to a Customer are dependent upon receipt by the Triple8 of payment of all applicable charges thereafter. All Services provided by Triple8 are subject to any applicable current tax rate as imposed by the State of California, as will be noted on the applicable invoice. All payments to Triple8, Inc. are nonrefundable, including any setup fee.
Payment Due Date:
Payments for collocation, dedicated server rental, bandwidth, hosting services, space and other recurring monthly services as agreed by Customer ("Recurring Charges") are due in advance on the agreed anniversary date of the applicable month, quarter or year, in each case, as specified in Customer's invoice.
Non-Payment and Fees:
Credit card charges to a Customer for its account that are declined for any reason other than an erroneous charge will be subject to a $10.00 declination fee. Accounts that are more than ten (15) days past due will be subject to disconnection and suspension of Services without prior notice. Services interrupted for nonpayment are subject to a $75 reconnect charge. Accounts not paid by due date, including any disputed amounts later determined to be payable by Customer, will be subject to a late fee of either $25.00 or 5% of the invoice amount, whichever is greater. Accounts that are not collectable by Triple8 may be turned over to an outside collection agency for collection and Customer shall be responsible for all collection charges, including those of Triple8. All undisputed charges not paid when due shall be subject to an interest rate of the lessor of 18% per annum or the maximum rate payable under California law.
All alleged overcharges or billing disputes must be reported within sixty (60) days of the time the dispute occurred or Customer will be deemed to have waived such dispute. Triple8 will endeavor to promptly resolve any dispute and/or credit any overcharge. If you dispute a charge to your credit card issuer that is later determined to be a valid charge, in addition to payment thereof, you agree to pay Triple8 interest on such charge at the interest rate described above.
Failure to Pay:
Triple8 may terminate your Services and account upon the failure to pay any charges when due. Such termination will not relieve a Customer of the responsibility for the payment of all accrued charges, plus interest as the rate described above and any collection fees.
All requests for canceling accounts must be made in writing (including via email) on at least thirty (30) days prior notice and sent to: Triple8, Attn: Cancellations, 525 South Douglas Street, Suite 2000, El Segundo, CA 90245.
D. Network Limitations and Restrictions
Triple8 controls and grants use of IP addresses that Triple8 may assign to Customers. Customer shall have no right to use any such IP address except as permitted by Triple8 in its sole discretion in connection with the Services. Triple8 shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by Triple8, and Triple8 reserves the right, in its sole discretion, to change or remove any and all such IP numbers and addresses at any time upon notice to a Customer. Triple8's allocation of IP addresses is limited by ARIN's policies, including that Customers must use name-based hosting where possible. Triple8 reserves the right to periodically review IP address usage, and if Triple8 determines that any Customer is using IP addresses where name-based hosting could be used, Triple8 may revoke authorization to use those IP addresses that could be used with name-based hosting.
Bandwidth and Disk Usage:
Customer agrees that its bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the applicable order form ("Agreed Usage"). Triple8 may monitor Customer's bandwidth and disk usage. Triple8 shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination without prior notice of Customer's account, which actions may be taken by Triple8 in its sole discretion. If Triple8 takes any such corrective action, including termination, Customer shall not be entitled to a refund of any fees paid in advance prior to such action if such fees were less than the bandwith and/or disk usage consumed by Customer (i.e., usage that exceeded the Agreed Usage) during the applicable period. In the event that a Customer exceeds the Agreed Usage, Customer agrees that Triple8 may, at its sole discretion, charge an applicable amount , reasonably determined by Triple8 for such excess usage, against Customer's credit card on file with Triple8.
E. Intellectual Property Rights
The copyrights, trademarks and other intellectual property rights in and to the content and materials on or made available through the Web Site are the property of their respective owners. Nothing contained in this TOS grants to you or any third party any right, title or interest in or to the intellectual property of Triple8 or any third party.
If you believe any information on the Web Site is inaccurate or contains material errors or omissions, please contact us at firstname.lastname@example.org. If you believe in good faith that any materials on, or hosted on the Web Site, or any materials on a Customer or Customer-hosted site, infringe your copyright on such materials, you may send us a notice requesting that the material be removed or access thereto be disabled. The requirements for any such notice are set out in the Digital Millennium Copyright Act of 1988, and such notices should be directed to email@example.com.
F. DISCLAIMER; LIMITATION OF LIABILITY
THE WEB SITE, INCLUDING ALL RELATED PRODUCTS AND SERVICES AND ALL CONTENT AND MATERIALS MADE AVALABLE ON OR THROUGH THE WEB SITE OR SUCH PRODUCTS OR SERVICES, IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, AND YOU EXPRESSLY AGREE THAT USE OF THE WEB SITE, OR ANY SUCH PRODUCT, SERVICE, CONTENT OR MATERIAL, IS ENTIRELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, TRIPLE8 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF TITLE AND NON-INFRINGEMENT, WITH RESPECT TO THE WEB SITE, TRIPLE8'S PRODUCTS AND SERVICES OR MATERIALS MADE AVAILABLE ON OR THROUGH THE WEB SITE. NEITHER TRIPLE8, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY SERVICE OR CONTENT PROVIDERS OR LICENSORS, WARRANT THAT THE USE OF THE WEB SITE OR THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND NOR DO ANY OF SAME MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR MATERIALS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE OR ANY OF SUCH PRODUCTS AND SERVICES, INCLUDING ANY AND ALL THIRD PARTY CONTENT OR MATERIALS ON THIRD PARTY WSEBSITES ACCESSED USING THE SERVICES. EXCEPT AS SET OUT BELOW, IN NO EVENT SHALL TRIPLE8 BE LIABLE, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY), FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA, LOSS OF BUSINESS, LOSS OF EQUIPMENT OR LOST PROFITS OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, ARISING OUT OF OR RELATING TO THE PERFORMANCE OR NON-PERFORAMNCE OF OR THE USE OF OR INABILITY TO USE (INCLUDING SUSPENSION OR CLOSURE OF) THE WEB SITE OR TRIPLE8'S PRODUCTS OR SERVICES, OR ANY PARTS THEREOF, EVEN IF TRIPLE8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEB SITE OR ITS RELATED PRODUCTS OR SERVICES, OR WITH ITS CONTENT OR MATERIALS THEREIN OR WITH OTHER THIRD PARTY CONTENT OR MATERIALS LINKED THEREFROM, IS TO DISCONTINUE USE OF THE WEB SITE OR THE APPLICABLE PRODUCT, SERVICE, CONTENT OR MATERIALS.
THE ABOVE DISCLAIMER OF WARRANTIES AND LIMITIATIONS OF LIABILITY APPLY TO ANY DAMAGES ARISING OUT OF OR RELATED TO ANY PERFORMANCE, NON-PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OFOR IN, OR UNAUTHORIZED ACCESS, ALTERATION OR USE OF OR TO, THE WEB SITE OR THE CONTENT AND MATERIALS ACCESSED BY OR THROUGH THE WEB SITE OR ANY OF ITS RELATED PRODUCTS OR SERVICES. FURTHERMORE, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TRIPLE8 SHALL NOT BE LIABLE FOR ANY DEFAMATORY, LIBELOUS, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES OR CONTENT OR MATERIALS ACCESSED BY OR THROUGH THE WEB SITE OR ANY OF ITS PRODUCTS OR SERVICES, INCLUDING ANY OF SAME ON ANY THIRD PARTY WEB SITE, AND THAT THE RISK OF INJURY FROM ANY OF THE FOREGOING RESTS ENTIRELY WITH YOU.
APPLICABLE LAW MAY LIMIT THE LIMITATIONS OR EXCLUSIONS OF LIABILITY HEREUNDER AND PROVIDE YOU WITH ALTERNATIVE OR ADDITIONAL RIGHTS. WITHOUT LIMITING THE FOREGOING, in no any event shall the liability of Triple8 exceed an amount equivalent to the charges paid BY CUSTOMER For the applicable Products or Services during the three (3) month period PRIOR TO THE EVENT(S) FROM WHICH any alleged direct damages AROSE (OR, IF SUCH EVENT(S) occurred IN THE FIRST THREE (3) MONTHS OF USE OF SUCH PRODUCTS OR SERVICES, THREE (3) TIMES THE AVERAGE CHARGES PAID BY CUSTOMER PRIOR TO SUCH EVENT(S) FOR SUCH PRODUCTS OR SERVICES).
You agree to defend, indemnify and hold harmless Triple8 and its directors, officers, employees, representatives and agents, from and against any and all claims, actions, demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys' fees and costs) arising out of or resulting from any beach by you of this TOS (including the AUP) or from your use of the Web Site or any of Triple8's products and services. Without limiting the foregoing, you agree to cooperate in the investigation or defense of any claim by any third party that has a contractual obligation to indemnify Triple8 and/or you.
H. Territorial Limitation
The Web Site and Triple8's products and services are operated in and provided from California, Nevada, Texas, and Europe (collectively, "Territories"). Triple8 does not represent that the Web Site or its products or services are appropriate, legal or otherwise, for use in locations other than in the applicable Territories from which the products and services are provided to each Customer. If you chose to use the Web Site or Triple8's products or services from any other location than the applicable Territory, you do so at your own risk and are solely responsible for compliance with local laws. Triple8 reserves the right to limit the use of the Web Site, or any of its products or services, to any location without prior notice to you. You may not, either directly or indirectly, throughout the use of any device, software, service or other means remove, alter, bypass, avoid, interfere with or circumvent any geo-filtering technology employed by Customer.
I. Choice of Law; Forum Selection
This TOS shall be governed in accordance with the laws of the state of California, without regard to its principles of conflict of laws. Triple8 and you expressly agree that any action at law or in equity arising out of or relating to this TOS, including any breach thereof, the use of the Web Site or the use of or subscription to any of Triple8's products or services, shall be filed only in the courts of the State of California for the County of Los Angeles, or the United States District Court for the Central District of California. Triple8 and you hereby each consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action, regardless of where you live.
Without limiting the foregoing, where Triple8 or you makes a good faith determination that a breach of this TOS by the other (including infringement of intellectual or proprietary rights) is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy, such action may proceed without first resorting to arbitration as described herein.
J. Force Majeure
Triple8 shall not be liable for any loss or damage or be deemed to be in breach of this Agreement if its failure to perform or failure to cure any of its obligations under this Agreement results from any event or circumstance beyond its reasonable control, including any natural disaster, fire, flood, earthquake or other acts of gods; shortage of equipment, materials, supplies or transportation facilities; strike or other industrial dispute; war, acts of terrorism or rebellion; shutdown or delay in power, telephone, internet connection or other essential service due to the failure of computer or communications equipment or otherwise (each, a "Force Majeure"). Without limiting the foregoing, the time for any such performance or cure will be extended, at a minimum, for a period equal to the duration of the Force Majeure, including as may be described in any notice of such event or circumstance to Customer by or on behalf of Triple8. You acknowledge that, subject to any applicable SLA, any such event or cause will not excuse the payment by Customer of any sums owed to Triple8 for Services rendered prior to, during or after the occurrence of any such Force Majeure condition.
K. General Provisions
Last updated: July 12, 2013