Legal Stuff
Service Level Agreement
This Service Level Agreement (SLA) applies to Subscribers of Tierzero's T1/T3/DS3/Ethernet, Dark Fiber, Voice, and Colocation services. This SLA does not apply to Subscribers of Tierzero's xDSL, ISDN, Dial and other services.
This SLA provides Subscribers with certain rights and remedies regarding the performance of the Tierzero Network. The "Tierzero Network" means the Tierzero owned and operated Internet Protocol (IP) routing infrastructure consisting of selected Tierzero points of presence (POPs) and the connections between them. The Tierzero Network does not include Subscriber premises equipment or any Telco access facilities connecting Subscriber's premises (or any Tierzero Colocation site, if applicable) to such infrastructure.
Availability Guarantee
Tierzero's goal is to make the Tierzero Network available to Subscriber free of Network Outages 100% of the time. A "Network Outage" is an instance in which Subscriber is unable to transmit and receive IP packets due to a Tierzero Network (Tierzero data centers or facilities) outage for more than 15 consecutive minutes, excluding outages relating to Tierzero's scheduled maintenance and upgrades or interruptions or degradations caused by access facilities, Telco lines or hardware not specifically provided or resold by Provider. A "Local Loop" failure is not a Network Outage.
Upon Subscriber's request, Tierzero will issue a credit to Subscriber for Network Outages occurring during any calendar month that are reported by Subscriber to Tierzero and confirmed by Tierzero's measurements of the Tierzero Network. Such credit will be equal to one hour of the IP access fee paid by Subscriber. Subscriber will not be entitled to more than one day's worth of credit for Network Outages in a given day.
Limitation On Warranties, Remedies And Liability
Subscriber agrees that Tierzero’s services are provided "as is," except to the extent provided below. Tierzero makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the Tierzero Network for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance. In addition, Tierzero does not warrant that the Tierzero Network will be without failure, delay, interruption, error, omission, or loss of content, data, or information. Neither Tierzero nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services, devices, or products to the customer for Tierzero’s service will be liable for unauthorized access to Tierzero’s or Subscriber’s transmission facilities or premises or equipment or for unauthorized access to, or alteration, theft, or destruction of, Subscriber’s data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of Tierzero's or its service provider's or vendors' negligence. Statements and descriptions concerning Tierzero’s Network, if any, by Tierzero or Tierzero's agents or installers are informational and are not given as a warranty of any kind. In no event will Tierzero, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to Subscriber in connection with Tierzero’s Network be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or for special, incidental or consequential damages of any kind arising out of or in connection with Subscriber’s use or inability to use the Tierzero Network or a Network Outage. These limitations apply to claims founded in breach of contract, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not Tierzero was informed of the likelihood of any particular type of damages. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Subscriber.
Tierzero’s total liability under its agreement to Subscriber will not exceed its service charges to Subscriber for the affected time period. Tierzero will not be responsible for third party fees or charges of any kind and is not liable for any business losses related to use of service.
Latency and Packet Loss Over The Internet
Due to the public nature of the Internet Tierzero does not gaurentee or warrant latency or packet loss over the Internet.
Exceptions
Subscriber shall not receive any credits under this SLA in connection with any failure or deficiency of the Tierzero Network caused by, or associated with
(A) circumstances beyond Tierzero's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of, or delay in, transportation, unavailability of, or interruption or delay in, telecommunications or third party services, failure of third party software, or inability to obtain raw materials, supplies, or power used in, or equipment needed for, provision of the Service Level Agreement; (B) failure of access circuits to the Tierzero Network, unless such failure is caused solely by Tierzero;
(C) general Telco failure; (D) scheduled maintenance; (E) DNS issues outside the direct control of Tierzero; (F) outage or error of any Tierzero measurement system; (G) Subscriber's acts or omissions, including without limitation, any negligence, willful misconduct, or use of the Tierzero Network or Tierzero services in breach of Tierzero's Terms and Conditions and Acceptable Use Policy, by Subscriber, or others authorized by Subscriber.
Credit Request And Payment Procedures
Requests for credits must be made via email to the Tierzero Technical Assistance Center at tac@tierzero.net. Each request in connection with a Network Outage must be received by Tierzero within seven days of the Network Outage. Each request in connection with Average Packet Loss in a calendar month must be received by Tierzero within seven days after the end of such month. Notwithstanding anything in this SLA to the contrary, the total amount credited to a Subscriber in connection with Network Outages and Average Packet Loss in any calendar month will not exceed the base IP access fee paid by Subscriber for such month. Each validly requested credit will be applied to a Subscriber invoice within 2 billing cycles after Tierzero's receipt of such request. Credits are exclusive of any applicable taxes charged to Subscriber or collected by Tierzero.
General
Tierzero reserves the right to change or modify this SLA to benefit the Subscriber, and will post changes to a Web site designated by Tierzero and made available to Subscriber. Except as set forth in this SLA, Tierzero makes no claims regarding the availability or performance of the Tierzero Network.
TIERZERO Acceptable Use Policy
This Acceptable Use Policy ("Policy") sets forth provisions of acceptable use of TIERZERO networks and services (the "Service"). Use of TIERZERO networks and services signifies your agreement to abide by this Policy and all applicable laws and regulations in full, in addition to all terms and conditions of applicable agreements, and any additional policies that may be applicable to a specific service offered by TIERZERO. TIERZERO strives to provide its customers with the highest quality Internet service available, while at the same time respecting the standards that have been created both within the Internet community, and by legislation. To that end, inappropriate or abusive activities and conduct will not be tolerated on TIERZERO networks. TIERZERO reserves the right, at its sole discretion, to modify this Policy, or prices for the Service, and may discontinue or revise any or all other aspects of the Service from time to time, without notice. Users of TIERZERO networks are encouraged to review this Policy often for changes or new information. Please send questions, comments, or complaints regarding this Policy to abuse@tierzero.com.
You acknowledge that you have read this Policy and that you accept the terms thereof. YOU AGREE TO READ THIS POLICY CAREFULLY BEFORE USING THE TIERZERO NETWORKS AND/OR SERVICES. If you do not agree to this Policy, you may not access or otherwise use the TIERZERO networks or services and must immediately contact TIERZERO to close your account. Your continued use of the Service after changes are posted constitutes your acceptance of this Policy as modified by the posted changes. The updated, online version of this Policy shall supersede any prior version of this Policy that may have been included in any software or related materials provided by TIERZERO. This Policy should be read in conjunction with any supplemental terms, policies, rules and guidelines posted on www.tierzero.com or in any other medium.
Duties Each user is responsible for complying with this Policy, and for providing assistance to TIERZERO in investigating and resolving any issue, as TIERZERO may request from time to time. Additionally, TIERZERO customers and users are required to determine the conditions of, and comply with, the acceptable use policies or equivalent documents of all network(s) which their data transits. TIERZERO does not control the content of data traversing TIERZERO networks; accordingly, TIERZERO assumes no responsibility for the content of any data or communication that may be transmitted over TIERZERO networks. You agree that TIERZERO is not liable for content that is provided by others. TIERZERO has no duty to pre-screen content, but has the right to refuse to post or to edit submitted content. TIERZERO reserves the right to remove content for any reason, but is not responsible for any failure or delay in removing such material.
Prohibited Uses
TIERZERO networks and services may only be used for lawful purposes and may not be used in any manner that violates any applicable local, state, federal or international law, order or regulation. You represent, warrant and covenant that you shall not engage in the transmission, distribution, dissemination, posting or storage of any data or material on the TIERZERO network that is in violation of any applicable law or regulation. This includes, but is not limited to, material or data which:
* Infringes any copyright, trademark, trade secret, or other intellectual property right.
* "Violates export control laws or regulations.
* Violates any party's confidentiality rights.
* Constitutes use or dissemination of child pornography.
* Is illegal or unlawful.
* Alters, steals, corrupts, disables, destroys, trespasses or violates any security or encryption computer file, database or network.
You may not engage in any of the following while using TIERZERO networks and/or services:
* Any conduct which is inconsistent with generally accepted norms and expectations of the Internet community (whether or not detailed in this Policy). TIERZERO reserves the right, in its sole discretion, to make a determination as to whether any particular conduct violates such norms and expectations;
* Any conduct that restricts or inhibits any other user from using and enjoying the TIERZERO network or services, including, but not limited to, use of a botnet, bruteforce attack, port scan, spam, virus, Trojan horse, lock, bomb, key, cancelbot, worm, and/or sending of harmful code or attachment;
* Any conduct that could damage, disable, overburden, or impair TIERZERO's servers or networks, or interfere with any other party's use and enjoyment of TIERZERO's networks and/or services;
* Using TIERZERO networks to transmit material that TIERZERO, in its sole discretion, believes to be illegal, obscene, offensive, objectionable or inappropriate;
* Forging of message headers or identity information in violation of relevant anti-phishing statutes, the Lanham Act, and/or the Federal Computer Fraud and Abuse Act, or taking any action with the intent of bypassing restrictions or limits on access to a specific service or site. This prohibition does not restrict the legitimate non-commercial use of pseudonymous or anonymous services;
* Falsifying identity or contact information (whether given to TIERZERO, to the Registrar, or other parties), including but not limited to, impersonating any person or entity and/or forging anyone else's digital or manual signature.
* Use of an IP address not assigned to you;
* Knowingly engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the TIERZERO network or on another provider's network.
* Any conduct which violates the acceptable use policies of TIERZERO’s backbone providers.
* Any conduct that redistributes or resells the Service to any third party via any means including, but not limited to, wireless technology; and/or,
* Any conduct that involves the participation in, or otherwise facilitates, pyramid or other illegal soliciting schemes;
* You are responsible for maintaining the security of any device connected to the Service.
* Systems connected to TIERZERO networks shall not be configured in any way which obscures system-identity information.
* Proxy servers of any kind shall be configured so as to prevent unauthenticated use from the public Internet.
* ANY CONDUCT THAT INVOLVES THE USE OF AUTO DIALERS, PREDICTIVE DIALERS OR MESSAGE BROADCAST SYSTEMS IN CONJUNCTION WITH THE TIERZERO VOICE OVER IP SERVICE
Reporting Obligations
You are responsible for immediately reporting to TIERZERO any issue that could compromise the stability, service or security of any user or system connected to TIERZERO networks.
Resellers and Downstream Service Providers
Resellers of TIERZERO services are responsible for informing their customers of this Policy and for enforcing its restrictions with regard to their customers' actions. Breach or non-compliance of this Policy by a customer or end-user or a reseller shall be considered a violation of this Policy.
You will be held responsible for any misuse of the Service that occurs through your account whether due to unauthorized access of your account by a third party, or due to the actions of any third party agent that acts on your behalf, or for your benefit. You must take the appropriate actions to maintain the security of your passwords and user information.
You must configure your system in a secure manner. Should your system be exploited by unauthorized persons, you are responsible for both reporting the violation (where applicable), and fixing the exploited system. For instance, should the security of a mail server be compromised to distribute unsolicited emails, you are responsible for immediately re-configuring the system to prevent further unauthorized use.
Users are prohibited from interfering or attempting to interfere with services ("Denial of Service Attacks"), whether intentionally or through neglect, of any other user, host, or network. The prevention of "unintentional attacks," such as infection and subsequent propagation of computer viruses, are the responsibility of every user: anti-virus software should be installed on every system which connects to TIERZERO networks.
Users are prohibited from injecting, intentionally or negligently, false or unauthorized network control data into TIERZERO networks, for instance in the form of incorrect routing or DNS information. E-Mail TIERZERO SMTP Relay Policies TIERZERO SMTP service is available to TIERZERO customers for corporate usage and is not intended for bulk mailing. Mail sent through TIERZERO SMTP that does not conform to the following policies will be rejected:
* 20 megabyte maximum file attachment
* 300 maximum unique connections per hour
* 500 maximum recipients per hour
You are prohibited from engaging in improper use or distribution of electronic mail ("e-mail"). You are strictly prohibited from engaging in any of the following activities:
* Sending unsolicited mass or commercial e-mail ("spamming") for any purpose whatsoever.
* Having third parties send out commercial emails on any user's behalf. Using Tierzero facilities to receive replies from unsolicited emails (commonly referred to as "drop-box" accounts).
* Configuring any email server in such a way that it will accept third party emails for forwarding (commonly known as an "open mail relay"). If a site has roaming users who wish to use a common mail server, the mail server must be configured to require some form of user identification and authorization.
* Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org.
* Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by TIERZERO customers must be Closed-loop ("Confirmed Opt-in"). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to or from any TIERZERO network is prohibited.
Mass or commercial email may be sent only to recipients who have expressly requested receipt of such e-mails, by the sending of an email request to the person performing the mass or commercial mailings. This exchanging of requests, acknowledgements, and final confirmations (commonly referred to as a "double opt-in" process) must be adhered to in their entirety for any mass or commercial email to be considered "solicited" by TIERZERO.
Users that send mass or commercial e-mail are required to maintain complete and accurate records of all e-mail subscription requests, specifically including the email and associated headers sent by every subscriber, and to immediately provide TIERZERO with such records upon request of TIERZERO. Subscriptions that do not have a specific recipient generated email request associated with them are invalid, and are strictly prohibited.
In the absence of positive, verifiable proof to the contrary, TIERZERO considers complaints by recipients of e-mails to be de-facto proof that the recipient did not subscribe or otherwise request the e-mail(s) about which a complaint was generated. Usenet (aka Netnews or Newsgroups) TIERZERO recommends that users not post to any newsgroup until they have familiarized themselves with the subjects, established guidelines, and restrictions of such newsgroups. All Usenet guidelines and restrictions are incorporated herein by reference, and users of TIERZERO networks agree to adhere to such guidelines unconditionally. Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:
* Making any posting for commercial purposes (including without limitation the pointing to specific URLs for commercial purposes), except where such postings are expressly permitted under the charter and/or Frequently Asked Questions (FAQ) of an applicable newsgroup.
* Posting binary files to newsgroups whose charter or name does not include allowances for such files.
* Canceling newsgroup postings other than your own, or using auto-responders or cancel-bots (except in cases of official newsgroup moderators performing their duties).
* "Excessive Cross-Posting" (ECP) or "Excessive Multi-Posting" (EMP), or "Usenet spam". TIERZERO retains the exclusive right to define these and other terms, however, we generally defer to the definitions found at http://www.cybernothing.org/faqs/net-abuse-faq.html
* Disrupting newsgroups with materials, postings, or activities that are (as determined by TIERZERO in its sole discretion), excessive, or repetitious, unless such materials or activities are expressly allowed or encouraged under the newsgroup's name, FAQ, or charter.
* Performing any unauthorized creation, cancellation, or removal of newsgroups.
The legitimacy of a given post or cancellation is generally determined by the official newsgroup or mailing-list moderator, therefore, TIERZERO usually defers to their judgment on these issues, however, TIERZERO retains the exclusive right to make these determinations.
If you, or a third party through you, violates any of the foregoing prohibitions, TIERZERO may immediately suspend and/or terminate the Services and you will be held financially liable for the full amount of the contract and any damages caused by your violation(s). Your rights to use the Services are non-exclusive, non-transferable and subject to compliance with these terms and conditions. As between TIERZERO and you, all intellectual property and proprietary rights relating to the Services, including but not limited to any specifications, protocols, IP addresses, configurations and routing data related to the Services, belong solely and exclusively to TIERZERO.
TIERZERO PRIVACY STATEMENT
TIERZERO is committed to respecting and protecting your privacy. TIERZERO provides this Privacy Statement to inform you of our Privacy Policy and practices, and of the choices you can make about the way your information is collected online and how that information is used. We've structured our websites so that, in general, you can visit Tierzero on the Web without identifying yourself or revealing any personal information. California Privacy Rights Pursuant to California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal customer information we share with third parties or corporate affiliates for those third parties' or corporate affiliates' direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to the following address:
California Privacy Rights Notice
c/o Tierzero
700 Wilshire Blvd., 6th Floor
Los Angeles, CA 90017
Information Collected by TIERZERO Policy - It is TIERZERO's policy to collect only the personally identifiable information (information that identifies you individually) that is needed to provide the Services with the quality you desire and deserve.
Customers - If you are a customer of TIERZERO, personally identifiable information may include your name, address, age, telephone numbers, account number, social security number, user IDs, passwords, email addresses, and other information as provided to TIERZERO online or as a customer of TIERZERO. TIERZERO's policy is to retain such information only as long as needed for business purposes or as the law may require. TIERZERO takes reasonable steps to protect your account information from unauthorized access. Website Visitors - When you access TIERZERO's website, access log information about your visit is automatically collected, including information such as the Internet Protocol (IP) addresses assigned (numbers assigned to your computer while online), bandwidth used, system and connection performance, browsers used, dates and times of access, and Internet resource requests, including requests to access web pages. TIERZERO does not store emails sent and received unless left in a TIERZERO account file. As explained below, TIERZERO could be required by court order to disclose such information if left on its system.
Online Registrants - In visiting the TIERZERO website, registration with TIERZERO or participation in a contest, survey or online transaction may require certain personally identifiable information. When asking you for such information, you will be informed of how it will be used and you may elect not to participate.
Cookies - TIERZERO, or a vendor that places advertising on TIERZERO websites, may use "cookies" to collect information about your visit to the website and to manage information concerning your preferences. A "cookie" is a small computer code added to a file on your computer as a record of its visit. It does not collect or provide your name or any other personal information about you. It can, however, be used by the website that placed it to note information about your visit, such as your type of web browser, operating system and Internet Protocol ("IP") address, to better tailor the site for you. It can also be used to recognize you when you log in as a registered user or as a repeat visitor returning to TIERZERO's website. This allows TIERZERO to tailor its site by remembering you and any options you select. TIERZERO may share non-personal information obtained from the varying kinds of cookies and web beacons (see below) with vendors, advertisers and others. You can control what cookies are accepted by your computer through the settings on your web browser or by deleting them from your files. Doing so, however, may limit the personalization available to you.
Third Party Cookies and Web Beacons - These forms of computer code are sometimes placed by advertisers or others with connection to a web page and may be read by the advertisement's provider. They may use a form of code called a "web beacon" or "clear GIF." These are usually contained in a transparent image on a page or in an image on an email message and serve as a way to gather information about your visit, such as your Internet Protocol Address and information or statistics about your visit. As with cookies, you can use your browser settings to control web beacons.
Advertisers and other Websites - TIERZERO does not control the privacy policies of advertisers or of websites you may link to from TIERZERO's websites or by using its services. You should review their websites for questions about their Internet security and privacy.
Use and Sharing Use Policy - TIERZERO considers any personally identifiable information received about you to be confidential, and it is TIERZERO's policy to use it only in providing its websites and internet services - from sales and installation, to operations, administration, advertising, marketing, support, network provision, maintenance, communications with you, billing, collection and in other ways related to its services. TIERZERO may also use such information in dealing with fraud and unauthorized use of its services. TIERZERO may associate personal account information with data from third parties about you or similar persons to better predict your product and service preferences for use in programming, advertising transactions and to market its services to you.
Aggregate Information - TIERZERO uses aggregate information about its customers and website visitors for a variety of purposes. Such aggregate information does not identify individual customers. TIERZERO may share such aggregate and related demographic information with third parties.
Retention Policy - TIERZERO may retain personal customer information in its regular business records as long as someone is a customer or until no longer needed for business or legal purposes. TIERZERO's security measures for this information are discussed below.
Sharing Policy - TIERZERO's overall policy is not to disclose to others outside of TIERZERO and its affiliates, vendors and business partners any personally identifiable information about its customers without their prior written or electronic consent. TIERZERO does not sell or provide your personal information to parties unconnected with the services we provide without your permission.
Special Exceptions - TIERZERO reserves the right to disclose personally identifiable information in its possession if TIERZERO has a good faith belief that it is necessary to: (1) comply with the law or legal process served on us; (2) protect and defend its rights or property or those of others; (3) respond to fraud, abuse or unauthorized reception; (4) enforce this Policy, other policies, or related standards; or (5) act in an emergency to protect your safety or that of another. TIERZERO may also share information if TIERZERO sells or transfers all or a portion of the business operations, merge or combine with another organization.
Third Parties - TIERZERO sometimes uses affiliates, vendors or third party partners in association with the provision of its Services and may provide personally identifiable information about users for such purposes. In providing such information, TIERZERO requires that the outside party maintain at least the same level of confidentiality that is maintained by TIERZERO for such information. In addition, any use by the vendor or third party may not exceed that needed to provide its Services.
Internet Communications - Unless addressed to TIERZERO, email messages, instant messages, online chats, or the content of other online communications that reside on or pass through its Service are not read. TIERZERO may however, retain and provide such communications if legally required to do so. Incoming and outgoing email messages are generally scanned electronically to identify and filter out likely spam and for viruses and related problems that could harm your equipment, the network or other users.
Law Enforcement Legal Requirements - As a provider of Internet communications services, TIERZERO may receive legal requests for customer information from government and law enforcement personnel. TIERZERO may also receive discovery requests in civil litigation. In all such cases, TIERZERO's policy is to cooperate as required by law, but to provide only such information as the law requires. This information is generally sought by subpoena served on TIERZERO. Under current law, many criminal subpoenas require that TIERZERO not disclose or notify you of the request. TIERZERO disclaims any duty to notify you of receipt of any legal requests. Copyright Infringement Claim Procedure If you believe that specific content on the TIERZERO network infringes upon your copyrighted materials, please provide TIERZERO with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the allegedly infringing material is located on the Website, including the url's of the particular web pages; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the use on the Website is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the foregoing information is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. TIERZERO's Designated Agent for copyright claims can be contacted as follows:
Legal Department c/o Tierzero 700 Wilshire Blvd., 6th Floor Los Angeles, CA 90017.
Please be advised that, pursuant to the Digital Millenium Copyright Act, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys fees.
Disclaimer of Warranties You expressly agree that TIERZERO, its parents, affiliates, subsidiaries, agents, officers, employees, representatives, successors and assigns, (collectively and individually referred to as "TIERZERO") is not responsible or liable for any content, act or omission of any third party including, without limitation, any threatening, defamatory, obscene, offensive, or illegal conduct, or any infringement of another's rights including, without limitation, privacy and intellectual property rights, and you hereby release TIERZERO for any such claims based on the activities of third parties. THE SERVICE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER TIERZERO, NOR ITS AFFILIATES OR ANY OF ITS SUPPLIERS OR LICENSORS, EMPLOYEES OR AGENTS WARRANT THAT THE SERVICE, WITHOUT LIMITATIONS, WILL BE UNINTERRUPTED; RELIABLE; AVAILABLE AT ALL TIMES; ERROR FREE; FREE FROM VIRUSES OR OTHER HARMFUL MALICIOUS AGENTS EVEN IF ANTI-VIRUS MECHANISMS ARE DEPLOYED; OR THAT ANY DATA OR ANY FILES SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME; OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. TIERZERO DOES NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, ACCURATE, OR MEET YOUR REQUIREMENTS. TIERZERO DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. TO THE EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NEED ARE HEREBY EXCLUDED AND DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A TIERZERO REPRESENTATIVE SHALL CREATE A WARRANTY. Some states or local laws do not allow the exclusion or limitation of implied warranties, so some of the above exclusions or limitations may not apply to you.
Limitation of Liability YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO DISCONTINUE YOUR USE OF THE SERVICES. IN ANY EVENT, TIERZERO'S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE IMMEDIATELY PRECEEDING TWELVE MONTH PERIOD. YOU HEREBY RELEASE TIERZERO FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION. FURTHER, TIERZERO IS NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING FROM OR RELATED TO YOUR BREACH OF THIS AGREEMENT. Your sole and exclusive remedies under this Agreement are as expressly set forth herein. Some states or local laws do not allow the exclusion or limitation of implied warranties, so some of the above exclusions or limitations may not apply to you.
TIERZERO, ITS PARENTS, AFFILIATES, SUBSIDIARIES, AGENTS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS COLLECTIVELY AND INDIVIDUALLY, ("TIERZERO") SHALL NOT BE LIABLE FOR ANY COSTS OR DAMAGES, ARISING DIRECTLY OR INDIRECTLY, FROM THE USE OF THE SERVICE (INCLUDING E-MAIL) OR THE RELIANCE UPON THE SERVICE, EQUIPMENT FURNISHED BY TIERZERO, OR TIERZERO'S PROVISION OF TECHNICAL SERVICE AND SUPPORT FOR THE SERVICE EVEN IF SUCH DAMAGE RESULTS FROM THE NEGLIGENCE OR GROSS NEGLIGENCE OF A TIERZERO INSTALLER, TECHNICIAN, OR CUSTOMER SERVICE REPRESENTATIVE, INCLUDING ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR DAMAGES, REGARDLESS OF WHETHER OR NOT TIERZERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Because some jurisdictions or states do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability, and the liability of TIERZERO'S parents, suppliers, agents, or affiliates, shall be limited to the extent permitted by law.
Indemnity Upon a request by TIERZERO, you agree to defend, indemnify, release, and hold harmless TIERZERO, its parent, its affiliates, and its respective employees, contractors, officers, directors, and agents from all liabilities, claims, demand, expenses, and damages, including costs and attorney's fees, that arise from your conduct, use or misuse of the Service. TIERZERO reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
TIERZERO assumes no responsibility, and you assume all risks regarding the determination of whether material or content is in the public domain, or may otherwise be used by you for purposes of intellectual property infringement.
You are solely responsible and liable for all material that you upload, posts, email, transmit, or otherwise make available via the Service, including, without limitation, material that you post to any TIERZERO website or the website of a TIERZERO affiliate, or any third party vendor's service (e.g., newsgroups) that is used by TIERZERO. TIERZERO does not claim ownership that you submit or make available for inclusion on the Service. However, with respect to material you submit or make available for inclusion on publicly accessible areas of the Service, you grant TIERZERO a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit such works.
Choice of Law and Forum THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES.
Severability, Integration and Waiver This Policy and any supplemental terms, policies, rules and guidelines posted on TIERZERO.com, or in any other medium, constitute the entire agreement between you and TIERZERO and supersede all previous written or oral agreements. The failure of TIERZERO to exercise or enforce any right or provision of the Policy shall not constitute a waiver of such right or provision. If any part of this Policy is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
Statute of Limitations You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Policy must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Termination Your right to use TIERZERO's services and networks automatically terminates if you violate this Policy or any rules or guidelines posted in connection with TIERZERO.com. TIERZERO also reserves the right, in its sole discretion, to terminate your access to all or part of TIERZERO's network or services, for any reason, with or without notice!
