OCOSA Communication, LLC
TERMS OF SERVICE AGREEMENT
Shared (WWW) Hosting, Dedicated Hosting, Dedicated Server, VPS Hosting
Effective 7/3/2013
THIS AGREEMENT is made by and among OCOSA Communication, LLC, an LLC organized under the laws of the State of Oklahoma (hereinafter collectively known as “OCOSA”) and the individual or entity entered on the Service Order Form(s) and/or through OCOSA’s electronic ordering system (hereinafter collectively known as “Client”, “your”, “you”).
ACCEPTANCE Client accepts this Agreement, along with the following policies and agreements incorporated and referenced below:
- Privacy Policy
- Anti-Spam Policy
- Domain Name Registration Agreement
- Dedicated Server Service Level Agreement
- Virtual Private Server Service Level Agreement
- give OCOSA written or electronic signature,
- informs OCOSA orally or electronically that Client accepts, or
- use or attempt to use any service.
If Client have never used the services before and do not wish to be bound by this Agreement, do not begin using the services and notify OCOSA immediately.
CONTENT
All services provided by OCOSA are to be used for lawful purposes only. Using any Shared (WWW) Hosting Account, Dedicated Server and/or VPS Hosting Account for the transmission, dissemination, storage, or presentation of any information, data or material in violation of any United States Federal, State, local law is prohibited. This includes but not limited to:
- copyrighted material,
- malicious material,
- illegal material,
- child pornography or exploitation of children,
- human trafficking,
- drug paraphernalia,
- material determined to be threatening or obscene,
- material that jeopardizes national security, or
- material protected by trade secret or other laws
In addition, Pornography and sex related merchandising are prohibited on any services provided by OCOSA to Client. This includes the representation of and sites that may imply sexual content and/or link to adult content hosted off OCOSA’s network. DESCRIPTION OF SERVICES
1. Shared (WWW) Hosting is provided to you by OCOSA, and you may transmit your content/website on the Internet. Your website will be hosted on OCOSA’s servers and in connection with OCOSA’s performance or enforcement of this Agreement. Your Shared (WWW) Hosting account will include the following:
- Disk space
- Email addresses
- FTP access
- Scripting language support
- Website statistics
- Control panel
- Monthly bandwidth transfer volume
- Access to scripts
- Basic backup
OCOSA does not warrant or otherwise guarantee that it will backup your data or that the data which has been backed up can be retrieved. OCOSA will not be responsible and/or liable for any archiving or backup of your data under any Shared (WWW) Hosting account. Client may not purchase a shared hosting account for the sole purpose of using it to backup or for storage purposes only. Any accounts found to be used for this purpose will be suspended.
2. Dedicated Hosting / Dedicated Server is provided to you by OCOSA, and you may transmit your content/website on the Internet. Your website or applications will be hosted on OCOSA’s servers and in connection with OCOSA’s performance or enforcement of this Agreement. Your Dedicated Hosting account will include the following:
Your Dedicated Server account will include the following:
3. VPS Hosting is provided to you by OCOSA, and you may transmit your content/website on the Internet. Your website will be hosted on OCOSA’s servers and in connection with OCOSA’s performance or enforcement of this Agreement.
Your VPS Hosting account will include the following:
- Virtual CPU (vCPU)
- Virtual RAM (vRAM)
- Virtual Hard Drive Disk vHDD
- Virtual NIC (vNIC)
4. Resource Usage
Client must adhere to resource usage for shared platforms. Client will be warned when you exceed the resource usage limit for shared platforms. Client shall respond to the warning and rectify the account in question. If Client does not rectify the account in question in a timely manner at OCOSA’s sole discretion, OCOSA will suspend and possibly terminate Client’s account.
5. Commercial Advertising (Electronic)
If you wish to send out large volumes of mail you must seek written permission and follow the Anti-Spam Policy.
6. SSL Certificates
OCOSA makes available for Client to purchase SSL Certificates to be used with hosting services provided by OCOSA or for your own internal use. If you are using SSL Certificate on a website hosted by OCOSA, will generate and securely store a corresponding private key.
If Client is using SSL Certificate on a third party or server not hosted by OCOSA, Client will generate and maintain private securely. Client will also submit CSR information needed to create the SSL Certificate.
7. Microsoft Software Licenses
We lease Microsoft software licenses to you. These licenses are not transferable and must be returned once service has ceased. You cannot mix your own licenses with Microsoft licenses provided by or leased from OCOSA.
8. Storage and Security
Client may request storage increase limits on Shared (WWW) Hosting, Dedicated Hosting and VPS Hosting accounts. However, VPS Hosting accounts require a resize of disk and partition in the virtual environment and can cause data loss. All times it is the Client’s responsibility to secure your VPS. OCOSA will secure it’s servers and it’s the clients responsibility to secure your specific Shared (WWW) Hosting account through use of .htaccess or other means if you have sensitive data and information.
9. FTP Backup
Client is encouraged to use FTP Backup to back up your website to your computer. Client may not purchase Shared (WWW) Hosting for the sole purpose of backing up your VPS server.
10. Service Uptime Guarantee
OCOSA offers a service uptime guarantee for services that do not have an associated Service Level Agreement (SLA). Services that do not have SLAs associated with them will have a guarantee up to 99.9%. Services that fall under the “Service Uptime Guarantee” includes but not limited to:
- Shared Web Hosting
- Email Services
- Domain Name Service
- Periodic schedule maintenance or repairs performed by OCOSA,
- Errors caused by Client from changes to account or coding,
- Outages that only do not affect the visibility of your website but may affect your access to FTP, email and/or web statistics, Causes beyond the control of OCOSA or that are not reasonably foreseeable by OCOSA, and
- Loss of connectivity from third party providers to OCOSA.
11. IP Addresses
OCOSA complies with ARIN’s policies and RFC2050. Client may request additional or dedicated IP addresses in conjunction with service. However, Client must adhere to all policies and justification of requested IP space. If Client is assigned space that is or longer in length of Slash 29, OCOSA will SWIP the information on the assignment in ARIN’s WHOIS database.
If Client is reallocated IP address space longer than slash 25 OCOSA will delegate DNS authority to clients DNS. Client is responsible for all DNS changes made once the IP address space is delegated. However, OCOSA will continue to maintain authority of the IP addresses.
All IP address assignments are NON-PORTABLE. They cannot be taken with you if you cease service with OCOSA. You will need to return the IP address assignment.
OCOSA will bill a reasonable fee for leasing IP addresses. These charges are billed monthly.
If client has direct allocated or portable IP address space and asks for OCOSA to announce such IP address space via BGP sessions with its peers. Then a Letter of Authorization (LOA) will be required. OCOSA will not own or maintain authority of this IP address space.
12. Term
The term (“Term”) of this Agreement is month to month commencing on the Effective Date. The Term will automatically renew for successive one (1) month periods unless terminated by either Party upon written notice given at least thirty days prior to expiration of the then existing Term. Upon expiration of a Service Term will automatically renew for successive one (1) month terms unless terminated by either Party upon written notice given at least thirty days prior to expiration of the then existing Service Term. When the Term of this Agreement expires, existing Services continue in effect for the remainder of their respect Service Terms and will continue to be governed by this Agreement.
13. Cancellation, Modification or Expedition of Orders
- Client may cancel the service order only if it is received in writing by OCOSA prior to the planned installation of the VPS Hosting account and Dedicated Hosting. OCOSA shall have the right to assess a Cancellation charge. If the service already have begun then Client is must pay for the full month of service.
- Client may request modification to a service order in writing and it must be received by OCOSA with acceptable reasonable time for OCOSA to modify the order. In cases where there is a significant service cost increase OCOSA will require the first month be paid in advance.
- Client may request an expedited installation date. If OCOSA accepts the expedited installation date Client must pay an expedite charge.
- In addition to the charges set forth in i, ii, iii above, OCOSA may bill Client for any third party charges it incurs in order to complete Client’s request to cancel, modify or expedite the service order.
14. Charges, Billing, Taxes, Payment and Disputes
Services are billed on a monthly basis commencing with the Service Date. Services are invoiced in advance, but usage charges are invoiced in arrears. Any installation or other non¬recurring charges, which are non-refundable, will appear on the first monthly invoice. All invoicing, payment notifications, payment reminders and disputes will be facilitated electronically via email.
As a courtesy, OCOSA sends reminders to the email address on file for all unpaid invoices seven (7) days before the ("Due Date") set forth on the invoice. If the invoice has not been paid full and with a balance equal to zero, OCOSA will send Overdue Reminders. The first Overdue Reminder will be send for invoices past due five (5) days. The second Overdue Reminder will be sent 10 days for invoices past due ten (10) days. The Third Overdue Reminder will be sent 15 days for invoices past due fifteen (15) days. Should your invoice remain unpaid for more than 10 days your account will be assessed a late fee as (defined below) and, whenever possible, will identify such charges as a separate line item on the invoice.
There are some cases where an invoice may need to be regenerated, which may include but not limited to; incorrect orders through our system, special pricing errors, promotion pricing errors, additional products or services not added to invoice in time and general billing errors. In those cases, the invoice accessible from the OCOSA billing system will be true and correct, and is the invoice Client should pay.
OCOSA may require a deposit prior to the provision of any new Service. OCOSA also may require a deposit as a condition to its obligation to continue to provide Service(s) if Client has failed to timely pay for Service(s) on two occasions during any six month period.
OCOSA will invoice Client for applicable Taxes (defined below) and, whenever possible, will identify such charges as a separate line item on the invoice. Client will be liable for Taxes which were assessed by or paid to an appropriate taxing authority within the applicable statute of limitations period. If Client fails to pay any Taxes properly billed, then as between OCOSA and Client, Client will be solely responsible for payment of the Taxes, and penalty and interest.
“Tax” or “Taxes” means any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated imposed, or sought to be imposed, on or with respect to purchases by Client from OCOSA for consideration under this Agreement or for OCOSA's use of public streets or rights of way, which OCOSA is required or permitted by law or a tariff to collect from Client; provided, however, that the term "Tax" will not include any tax on OCOSA's corporate existence, status, income, corporate property or payroll taxes.
If either Party is audited by a taxing or other governmental authority, the other Party agrees to cooperate reasonably by responding to the audit inquiries in a proper, complete and timely manner. OCOSA will cooperate, at Client's expense with reasonable requests of Client in connection with any Tax contest or refund claim. The Client will ensure that no lien is attached to or allowed to remain on any asset of OCOSA as a result of any Tax contest. Client will indemnify and hold OCOSA harmless against any liabilities, damages, losses, costs or expenses arising out of such Tax proceedings, including interest, penalties and attorney’s fees.
If Client claims an exemption for any Taxes, Client must provide OCOSA with a proper tax exemption certificate as authorized by the appropriate taxing authority. Client must pay the applicable Taxes to OCOSA until it provides OCOSA with a valid tax exemption certificate. If applicable law exempts a Service under this Agreement from a Tax, but does not also provide an exemption procedure, then OCOSA will not collect such Tax if Client provides OCOSA with a letter signed by one of its officers: (i) claiming a right to the exemption; (ii) identifying the applicable law that allows such exemption and does not require an exemption certificate; and (iii) agreeing to. Indemnify and hold OCOSA harmless from any tax, interest, penalties. Loss, cost or expense asserted against OCOSA as a result of its not collecting the Taxes from Client.
Payment for all undisputed amounts due under this Agreement must be received by OCOSA on or before the due date specified on the invoice Due Date. Any payment or portion thereof not received by the Due Date is subject to a late charge on the unpaid amount at the lesser of 1.5% per month or the maximum rate permitted by law.
OCOSA provides various methods for payment through our OCOSA Client Portal located at https://myportal.ocosa.net, which include but are not limited to; Visa, MasterCard, Discover Card, American Express, Electronic Check aka eCheck, ACH payments, Wire Transfer, Cashier’s Check and Company Check. OCOSA may verify funds will clear on any Company Check submitted as payment tender. If Client submits payment via Company Check and it does not clear, OCOSA at its sole discretion may require Client to secure another method of payment.
If Client disputes any charges, it must log the dispute by e-mailing our Billing Department at billing@ocosa.com, or by contacting OCOSA's Billing Department telephone line at (918) 585-9882 (Option 4). All disputes must be submitted to OCOSA in the manner specified above within ten (10) business days of the date of the invoice associated with the disputed charges, or the invoice shall be deemed correct and all rights to dispute such charges are waived. Withheld disputed amounts determined in favor of OCOSA must be paid by Client within five (5) business days following written, electronic or telephonic notice of the resolution, and will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the Due Date until the date paid. Amounts that were disputed but paid by Client will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date paid through the date of resolution if the resolution is determined in Client's favor.
15. Indemnification
Each Party shall indemnify, defend and hold harmless the other Party from all losses or damages arising from or related to bodily injury or physical damage to tangible property caused by the negligence or willful misconduct of other Party. Client shall indemnify, defend and hold OCOSA harmless from all losses or damages arising from Client’s violation of third party intellectual property rights, all claims of any kind by Client’s end users, or any act or omission of Client associated with any Service.
16. Limitation of Liability
Except for the Parties’ respective obligations set forth in Section 14 herein, neither Party is liable to the other for indirect, consequential, special, incidental, or punitive damages of any kind or nature whatsoever (including without limitation lost profits, lost revenues,
lost savings, lost opportunity or harm to business), whether or not foreseeable, whether or not the Party had or should have any knowledge, actual or constructive, that such damages might be incurred, and regardless of the form of action, nature of the claim asserted or the frustration of either Party’s purpose. Indirect damages include, but are not limited to, damages of the kinds specified in the preceding sentence that are incurred by a third party and are asserted against a Party (including attorneys’ fees and expense). OCOSA’s liability to Client for direct damages (including without limitation Services Outage credits) may not exceed one (1) month’s calculation of the applicable MRCs regardless of the form of action, nature of the claim asserted or the frustration of either Party’s purpose. OCOSA has no liability for the content of information that Client passed through OCOSA’s Network, Client’s transmission errors, or any failure to establish connections outside of the OCOSA Network.
17. Termination by OCOSA
OCOSA may disconnect all Service(s) associated with a delinquent account upon ten (10) days written notice for Client’s failure to pay amounts due under this Agreement which remain uncured at the end of the notice period; or upon thirty (30) days written notice for: (i) Client’s breach of a non-economic, material provision, of this Agreement or any law, rule or regulation governing the Services which remains uncured at the end of the notice period; (ii) Client’s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver; and/or (iii) any governmental prohibition or required alteration of the Service.
OCOSA may terminate or suspend Service(s) without notice if: (i) necessary to protect OCOSA’s Network; (ii) OCOSA has reasonable evidence of Client’s illegal, improper or unauthorized use of Services; or (iii) required by legal or regulatory authority.
Any termination or disconnection shall not relieve Client of any liability incurred prior to such termination or disconnection, or for payment of unaffected Services. OCOSA retains the right to pursue all available legal remedies if it terminates this Agreement or disconnects Service(s) in accordance with this Section. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of this Agreement. If OCOSA terminates Services in accordance with this section, and Client want to restore such Service, Client first must pay all past due charges, a reconnection charge and a deposit equal to 2 months’ recurring charges. All requests for disconnection will be processed by OCOSA in 30 days or less. Client must pay for Services until such disconnection actually occurs.
18. Termination by Client
Client can terminate this Agreement and/or any Service Order hereunder upon thirty (30) days prior written notice, without incurring termination liability, for OCOSA’s (i) breach
of any material provision of this Agreement, or any law, rule or regulation that affects Client’s use of Service(s), which remains uncured at the end of this notice period and/or (ii) insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event.
19. Termination Liability
If OCOSA terminates this Agreement or any Service Order(s) pursuant to Section 15 above (other than subsections a(iii) and/or b(ii)), or if Client terminates this Agreement or any Service Order(s) for any reason other than OCOSA’s material breach that remains uncured after written notice and a reasonable cure period, all MRCs associated with the terminated Service(s) for the balance of the applicable Service Term shall become immediately due and payable.
20. Assignment
Neither Party may assign this Agreement without the prior written notice of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (1) OCOSA may assign its rights and/or obligations hereunder (a) to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c) for purposes of financing; and (2) Client may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale, or transfer of al or substantially all its assets, provided that any assignment by Client pursuant to this exception is subject to the following conditions: (i) the proposed assignee satisfies OCOSA’s credit and deposit standards; (ii) Client has fully paid for all Services through the date of assignment; and (iii) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
21. Entire Agreement
This Agreement, together with the Service Order(s) and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the Service Order shall prevail over this Agreement and any applicable tariff shall prevail over both. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties.
22. Force Majeure
Either Party shall be excused from performance if inability to is due to a cause or causes beyond such Party’s reasonable control, including but not limited to acts of God, fire, explosion, vandalism, acts of terrorism, cable cuts caused by a third party, adverse weather conditions, labor strikes, and governmental action (“Force Majeure”). If such inability to perform continues for sixty (60) days or longer, the other Party may terminate
the affected Services. Client’s invocation of this clause does not relieve Client of its obligation to pay for Services actually received.
23. Governing Law – Litigation
This Agreement governed by and subject to the laws of the State of Oklahoma, excluding its principles of conflicts of law. If litigation is commenced to enforce this Agreement, the prevailing Party is entitled to reimbursement of its costs and attorneys’ fees from the other Party.
24. Headings
Headings herein are for convenience only and are not intended to have substantive significance in interpreting this Agreement.
25. Notices
Whenever written notice is required by this Agreement, OCOSA must provide notice to Client’s billing address, and Client must provide notice to OCOSA at
OCOSA Communication, LLC
ATTN: General Manager
P.O. Box 3432, Tulsa, OK 74101
A notice is deemed given when delivered.
26. No Waiver
Either Party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
27. Public Releases, Use of Name
Neither Party may issue a news release, public announcement, advertisement or other form of publicity regarding this Agreement nor the Services provided hereunder without the prior written consent of the other Party. Client may not use OCOSA’s prior written consent.
28. Representation and Warranties
OCOSA represents and warrants that the Services will be performed by qualified and trained personnel. OCOSA does not guarantee, represent or warrant that the Service(s) will be without interruption. OCOSA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, AND DISCLAIMS ANY ABD ALL WARRANTIES OF MECHANTABILITIY OR FITNESS FOR A PARTICULAR OR ORDINAY PURPOSE.
29. Severability
If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties’ original intent.
30. Survival
The terms and conditions of this Agreement will survive the expiration or termination of this Agreement to the extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate.
31. Relationship of Parties; No Third Party Beneficiaries
The Parties are independent contractors, and nothing herein creates or implies agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of OCOSA, Client, and permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
