Terms of Service (TOS)
This Terms of Service, or TOS, is a contract between you (the ‘Client’, ‘you’, ‘your’) and Discotoast Inc. (‘Discotoast Inc.’, ‘Discotoast’, ‘we’, ‘us’, or ‘our’). All clients of Discotoast Inc agree to abide by these policies. All clients of Discotoast Inc also warrant that they are at least 18 years of age, and that they have the right and authority to bind themselves, or the company that they represent, to the terms of this TOS. This TOS, may be modified from time-to-time. All clients of Discotoast Inc agree to be bound by these modifications. The most recent version of this TOS can always be found here.
While we facilitate your business on the Internet, we are an independent contractor. We only have control of the products and services we provide directly, and are not liable for your actions, the actions of our third party service providers, or the actions of individuals who use your products and services (End Users).
Discotoast provides a number of services to its customers. The services and products provided to you by Discotoast, as set out on our website, are referred to as the Services. We provide the Services to you based on the description of them on our website as of the Effective Date. Should our website change subsequent to the Effective Date, we have no obligation to modify the Services to reflect such a change.
The Services may be provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. We will use commercially reasonable efforts to inform you of those changes. However, you may not terminate this TOS based on such a change by a third party.
1.1 Virtual Private Server
If you purchase Virtual Private Server services from us, you also agree to be bound by Part B of this TOS which provides additional terms and conditions that govern our Virtual Private Server services. Part B supplements this TOS. Its provisions do not replace it.
2. Contact Information
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about the Services. You agree to maintain a working email address that is monitored daily. We have no responsibility, or liability, for interruptions in the Services, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.
This TOS will begin on the Effective Date and continue for the term set out on the page describing the Services (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the page describing the Services does not contain an Initial Term, the Initial Term shall be one month.
Your invoice is generated 15 days prior to its due date. The due date is the day of the month you signed up as listed on the invoice as ‘Subscription Renewal Date’ (Due Date). You are responsible for the fees and charges set out on the Services you have purchased, according to the terms set on the invoice issued.
4.1 In consideration of the performance of the Services, Client shall pay Discotoast the amount and terms set forth on this page, as well as the issued invoice, which may amended from time to time for the Services during the term of this Agreement.
4.2 Client shall receive an invoice via e-mail at the time Client contracts for the Services, which shall confirm the fees payable to Discotoast. Thereafter, Client shall receive a monthly billing statement for the upcoming term. The billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days’ notice as set forth in Section 4.4 herein.
4.3 Client is responsible for all activities and charges resulting from Client’s use of the Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the invoiced billing statement. Client acknowledges that no refunds will be given by Discotoast in the event that Client’s account is terminated by Discotoast or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Discotoast by sending an email with account information to email@example.com.
4.4 Current rates for using the Services may be obtained via contacting Discotoast via an email request to firstname.lastname@example.org. Discotoast reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time. In addition, Discotoast may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Discotoast does not receive the full amount of Client’s Service account balance within fifteen (15) days of invoice due date, a late charge equal to 3% per month or highest amount allowed by law per month will be added to Client’s bill and shall be due. For each invoice reissued due to the application of a late fee, a $25 administration fee will apply for invoice processing and re-issuance. Client shall also be responsible for all attorney and collection fees arising from Discotoast’s efforts to collect any unpaid balance of Client’s account(s), and Discotoast may terminate Client’s account immediately without further notice to Client.
4.5 All hosting services renew automatically. Client may opt out of automatic renewals by contacting email@example.com up to 5 business days prior to their subscription renewal date.
Either party may terminate the services by providing written notice to the other no later than 5 business days from the expiration of the Initial Term or Renewal Term.
We reserve the right to immediately terminate this TOS, and suspend or cancel the Services: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.
Upon termination, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
5.1 Without Cause.
This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days’ prior email notice of termination. No matter which party terminates the Agreement pursuant to this Section 5.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such five (5) day period.
5.2 For Cause.
In addition to any other rights it may have under this Agreement or applicable law, Discotoast may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client’s breach or failure to comply with the TOS or other policies of Discotoast. Client may terminate this Agreement if Discotoast breaches any material term or written notice of same. If this Agreement is terminated by Discotoast under this Section 5.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Discotoast reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Discotoast believes in its sole discretion to be illegal or potentially harmful to others or may expose Discotoast to harm or liability.
5.3 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.
You may cancel this Agreement at any time by providing written notice to us as provided in the paragraph entitled “Termination” It is important to note that if the Order contains a term commitment, you will be responsible for all termination charges based on your cancellation. The fact that you cancel this Agreement does not relieve you of responsibility for these charges. If you have a term agreement with us, we strongly suggest you contact us prior to canceling to determine what your cancellation obligations will be.
7. Use of the Services
The terms “unlimited” and “unmetered” are defined by our experience with similarly situated customers. This means that your use of our resources may not exceed that of similarly situated customers. Examples of primary purposes for an account that are not allowed include, but are not limited to:
- Audio/Video streaming (other than that which is incidental to a site’s operation)
- Very large photo galleries
- Storage of a large amount of uncompressed or full-size digital images
- Online file (FTP) serving
- Distribution of large audio or video content such as MP3 files
- Online backups (i.e. backup of desktop/laptop computer, files, or anything not directly related to the website)
You may not place excessive burdens on our CPUs, servers or other resources. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result our need to place restrictions on your use of the Services. You agree that we may place restrictions on your use of the Services or customer support services to the extent that they exceed the use of these resources by similarly situated customers.
You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information and ensuring that you, your employees, and/or agents have sufficient technical expertise to understand how to implement the Services.
You are responsible for the Fees once our Services are made available to you. It is your responsibility to ensure that you can connect with us to use the Services.
8. Licenses and Intellectual Property
Discotoast Inc grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by Discotoast solely to access and use the Services. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in Discotoast’s technology shall remain with Discotoast Inc, or Discotoast Inc’s licensors. You are not permitted to circumvent any devices designed to protect Discotoast Inc, or its licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
We may provide technical support, implementation, customer service or administrative information to you. This information is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products and services. We shall be the exclusive owners of this intellectual property. You waive any rights you may in this intellectual property, and assign all right, title and interest in it to us.
You grant Discotoast, and any third parties used by Discotoast to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the Services. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.
9. Discotoast’s Representations and Warranty
Discotoast warrants that it will perform the Services in accordance with other similarly situated companies. To make a warranty claim, you must notify Discotoast in writing within 30 days of the date Discotoast’s alleged breach. Your exclusive remedy, and Discotoast’s sole obligation, in the case of a breach of warranty is, at Discotoast’s option, to (i) reperform the Services; or (ii) issue you a credit based on the amount of time the Services were not in conformity with this warranty, subtracted (“prorated”) by the amount of time they were in conformance. For the purposes of Discotoast’s warranty, the following issues shall not constitute services within the definition of “similarly situated companies”: uptime, “uptime guarantees” or other items for which Discotoast provides a service level agreement, regardless of whether a service level agreement is, or was, available for the Services.
Services provided by third parties are expressly excluded from this warranty.
10. Your Representations and Warranties
You represent and warrant to Discotoast that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from using the Services in particular, and doing business on the Internet in general; (iii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; and/or (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service.
THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT HEREIN, DISCOTOAST HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND TITLE. DISCOTOAST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. DISCOTOAST IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, 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 US. DISCOTOAST SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO DISCOTOAST SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM DISCOTOAST, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
12. Limitation of Liability
It is your obligation to ensure the accuracy, integrity, title or ownership, and security of anything you receive from the Internet. You agree that Discotoast has no liability, of any sort, for content you or your customers access from the Internet.
Discotoast provides no guarantee that the Services will be uninterrupted, or continuous, that you will be able to access Discotoast’s network at a particular time, that any data transmitted by Discotoast is accurate, error free, virus free, secure, or inoffensive. You acknowledge that it is your responsibility to keep back-up copies of your data. Discotoast is not responsible for any loss of data, for any reason. Discotoast is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its network.
IN NO EVENT WILL DISCOTOAST’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY DISCOTOAST FROM YOU FOR THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM DISCOTOAST SHALL BE INTERPRETED TO INCLUDE DISCOTOAST’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH US.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD DISCOTOAST OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF DISCOTOAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless Discotoast Inc and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services (ii) any violation by you of any of Discotoast’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate “you” include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
Discotoast Inc shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that a product or service provided by Discotoast hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to products or services which are fully owned by Discotoast Inc. It does not extend to products or services provided by third parties. If set out in its agreements with third-party suppliers, Discotoast shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying Discotoast promptly in writing of the claim and giving Discotoast full authority, information, and assistance for the defense and settlement thereof. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in Discotoast’s opinion is likely to occur, you agree to permit Discotoast, at its option and expense, either to: (i) procure for you the right to continue using the product or service; (ii) replace with a product or service, regardless of manufacturer, performing the same or similar function as the infringing product or service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate Discotoast’s obligations (and your rights) under this TOS with regard to such product or service, and, refund the Fee charged by us for the period in which the Services were unavailable.
Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you.
Please refer to firstname.lastname@example.org for contact information for most issues, including technical support and billing. Notices regarding this TOS and other Discotoast policies should be directed to:
96 St Patrick ST TH103
Toronto, ON. M5T 1V2
15. Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, bandwidth interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
16. All Claims
All claims you bring against us must be resolved in accordance with this TOS. Without limiting the previous sentence, this includes claims based on service outages which are expressly covered by our SLA. All claims filed or brought contrary to this TOS will be considered to be improperly filed and a breach of this TOS. If you file a claim contrary to this TOS, we may recover attorneys fees and costs. Attorney’s fees include any fees charged by our in-house, or virtual in-house, attorneys.
17. No Waiver
No waiver of rights under this TOS, or any Discotoast policy, or agreement between you and Discotoast shall constitute a subsequent waiver of this or any other right under this TOS.
This TOS may be assigned by Discotoast. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this Agreement shall remain in full force and effect.
Sections 10, 11, 12, 13, 14, 15, and 16 shall survive the termination of this Agreement.
We will provide, at no cost to you, one primary IP address by default, which will be subject to change at any time. You may use this address only in association with the Services, it may not be transferred. Private IP addresses may be subscribed in addition as value-added services and follow the same rules as the primary IP as listed above.
You will have no physical access to the Virtual Private Server.
While the Virtual Private Server may appear to be dedicated solely to your use, the server it is on may be shared with other Discotoast customers. You will take no actions to limit the use of the Equipment by our other customers or other entities in general. You will not alter, or attempt to alter mechanisms, including software, implemented by us to facilitate the sharing of a server. You understand that certain aspects of the Virtual Private Server designed to facilitate use by multiple parties may affect your use and administration of the Virtual Private Server. You may not terminate this Agreement based on the implementation of these features.