TDL MANAGED SERVER PROGRAM
New Customers: After signing up for a managed server, this contract must be
signed, and either faxed to (510) 782-4738 or mailed to The Diamond Lane,
2415 Radley Court #1, Hayward, CA 94545. A signed contract and initial
are required before server setup process will proceed.
Diamond Lane is an Internet Service/Web Presence Provider. TDL MSP is
a service provided by TDL whereby managed Internet servers can be used with
TDL services. The use of such servers is subject to compliance with the
and conditions set forth herein.
The Agreement made as of _________________________, by and
between The Diamond Lane. (hereinafter "TDL"), with its
principal place of business at 2415 Radley Court, Unit #1, Hayward,
California 94545 and _________________________ (hereinafter
"Customer") of __________________________________________,
for the use of a managed server from TDL and certain administration and
TDL agrees to provide the use of a server to Customer, for the
exclusive use of Customer, excepting normal system administration as
required by TDL in order to maintain security and stability, at
the prices published at http://www.tdl.com/services.html
for a term of no less than twelve months. TDL will administer and service
said server in accordance with the terms contained herein. Published fees
include initial setup and installation services as determined by TDL.
The term of this agreement shall begin on the date the order is completed
and continue for a term of no less than twelve months. Thereafter the
shall be open-ended, subject to termination in conformity with Section 9
of this agreement.
Administrative or "root" access to the server is limited to employees of
TDL and/or their authorized agents. TDL reserves the right to require,
at their discretion, software and/or hardware upgrades for the purposes
of maintaining security and stability of the services provided. The cost
of such upgrades shall be set by TDL and paid by the customer.
NETWORK TRAFFIC CHARGES
There shall be no additional charge for monthly average network traffic of
megabytes per day or less. Monthly average network traffic in excess of
1024 megabytes per day shall incur an additional monthly fee set by TDL.
Network traffic shall be measured by TDL and may include all forms of
traffic to and from the server, at the sole discretion of TDL. All fees
be set and adjusted by TDL from time to time and posted at the
TDL MSP Web site.
HARDWARE AND SOFTWARE CONFIGURATIONS
All managed servers must use hardware and software configurations that
conform with TDL requirements. Use of any particular hardware or
software configuration may be declined at the sole discretion of TDL.
The Customer agrees to use the services and servers furnished by TDL
as allowed by applicable Local, State, Federal, and International laws.
Transmission of any material in violation of any International, Federal,
State or Local regulation is strictly prohibited. This includes, but is not
limited to, copyrighted material, obscene or threatening material, or any
material protected by trade secrets.
While using a managed server from TDL, Customer may not:
A. Restrict or inhibit any other user from using and enjoying the
B. Post or transmit any unlawful, threatening, abusive, libelous,
defamatory, obscene, offensive, indecent,
pornographic, profane, or
otherwise objectionable information of any kind,
limitation any transmissions constituting or
encouraging conduct that
would constitute a criminal offense, give rise to
civil liability, or
otherwise violate any Local, State, Federal, or
including without limitation the U.S. export control
regulations, and laws protecting intellectual property
copyright, trademark, or trade secret laws;
C. Post, publish, transmit, reproduce, or distribute any
software containing a virus or any other harmful
D. Post, publish, transmit, reproduce, distribute or in any way exploit
information, software, or other material obtained
through the service
for commercial purposes (other than as expressly
permitted by the
provider of such information, software, or other
Customer agrees to indemnify, defend, and hold TDL harmless from any
and all claims resulting from service which causes direct or indirect damage
to another party. The Customer also agrees to indemnify and hold TDL
harmless from any and all lawsuits, judgements, decrees, costs, and expenses
including any attorney fees, from the use of the services or servers provided
by TDL without limitation or exception. This indemnification and hold
harmless agreement extends to all issues associated with Customer's service
or servers, including but not limited to Web site content or domain name
Either party can terminate this contract for any reason upon 90 days prior
written notice of intent to terminate to the other party. TDL reserves the
right to terminate this contract without notice at the sole discretion of
TDL for violation of any terms and conditions of this contract. TDL
may deny Customer access to a server without notice if Customer engages
in any conduct or activities that TDL in its sole discretion believes to be
violation of any of the terms and conditions of this agreement. TDL shall
have no responsibility to notify any third-party providers of services,
merchandise, or information, nor any responsibility for any consequences
resulting from such discontinuance or lack of notification. Customer
agrees that TDL has the right to monitor the servers electronically from
time to time and to disclose any information as necessary under the law,
or to protect itself from claims by a third party or parties. TDL reserves
the right to remove or remove access to any information or materials, in
whole or in part, that, in its sole discretion, are unacceptable, offensive,
or in violation of this agreement.
TDL makes no warranties or representations of any kind for the services
being offered. The service is provided on an "as is" and "as available"
basis without warranties of any kind, either express or implied, including
but not limited to warranties of title, noninfringement, or implied
of merchantability or fitness for a particular purpose. No advice or information given by TDL or its agents or employees shall create a warranty.
TDL provides no warranty that the service will be uninterrupted or error
free or that any information, software, or other material accessible on the
service is free from viruses or other harmful components. Under no
circumstances shall TDL be liable for any direct, indirect, special,
or consequential damages that result in any way from Customer's use of or
inability to use the service, or for third parties' use of the service to
Customer's Web content, or to access the Internet or any part thereof, or
Customer's or any third parties' reliance on or use of information,
or merchandise provided on or through the service, or that result from
mistakes, omissions, interruptions, deletion of files, errors, defects,
in operation or transmission, or any failure of performance. If Customer is
dissatisfied with TDL's service or any of its terms, conditions, policies,
rules, guidelines, or practices, Customer's sole and exclusive remedy is to
discontinue using the service.
Customer understands that by placing information on a managed server
from TDL that such information becomes available to all Internet users
and that TDL has no way of limiting or restricting access to such information or protecting any such information from copyright infringement
or other wrongful activity. Customer assumes full responsibility and risk
for the use of the managed server. It is the Customer's sole responsibility
to evaluate the accuracy, completeness, and usefulness of all opinions,
advice, services, and other information, and the quality and merchantability
of all merchandise, provided through TDL or on the Internet generally.
TDL reserves the right to monitor any and all communications
or with our facilities. Customer agrees that TDL is not considered a
"secure communications medium" for the purposes of the ECPA and
no expectation of privacy is afforded.
Customer agrees that as the person legally responsible for use of this
server and services, they are at least 18 years of age. Customer agrees
to supply TDL with a current and truthful full name, postal address, and
telephone number for their records, and has a continued obligation to
keep this information current.
NO INTERFERENCE WITH OPERATION OF SYSTEM
Customer agrees not to maliciously or intentionally interfere with the
proper operation of the server and network, including but not limited
to defeating identification procedures, obtaining access beyond that
which Customer is authorized for, and impairing the availability,
reliability, or quality of service for other customers. Customer further
agrees not to interfere with the proper operation of other systems reachable
through the Internet, including any attempt at unauthorized access.
Customer agrees to follow the Acceptable Use Policy of any network
or service to which Customer connects.
Customer agrees to adhere to system policies as published online by
TDL, including restrictions on services available, restrictions on certain
features, and all other policies designed to protect and enhance the
quality and reliability of service at TDL. Customer agrees to abide by
any and all future policy decisions by TDL.
Customer agrees that the security of the server and all services is solely
Customer's responsibility. Customer further agrees that if the security of
Customer's server has been compromised in any way, Customer will notify
TDL immediately in writing as set forth in Section 22 herein. Customer
shall be held fully responsible for any misuse or compromise of Customer's
server for which TDL is not properly notified. Customer agrees that if any
security violations are believed to have occurred in association with the
Customer's server, TDL has the right to suspend access to the server
pending an investigation and resolution. Customer also agrees that TDL has
the right to cooperate in any government or legal investigation regarding
any aspect of our services, including any of the managed servers used by
Customer. Any use of TDL's system to engage in software piracy or other
violations of law will result in service suspension and be immediately
reported to the appropriate authorities.
BACKUP OF DATA
Daily backup of server is performed for administrative purposes only.
Customer's use of the server and service is at Customer's sole risk. TDL
is not responsible for files and data residing on Customer's managed server.
Customer agrees to take full responsibility for files and data transferred
maintain all appropriate backup of files and data stored on server.
TRANSMISSION OF MATERIALS
Customer agrees not to transmit unsolicited or prohibited advertising or
other harassing or illegal materials through electronic mail, Usenet
or other Internet media. The use of TDL or any other service with reference
to services obtained through TDL, for unsolicited mass mailings, postings,
or other activities considered an annoyance to others, commonly referred to
as "spamming," is strictly prohibited and may cause Customer's services to
be terminated immediately and without warning. Customer will be held fully
responsible for any damages to Customer, TDL, or any other party or parties
resulting from any such conduct.
Customer agrees to supply appropriate payment for the services received
from TDL, in advance of the time period during which such services and
use of server are provided. Customer agrees that all setup and installation
fees are non-refundable once setup is completed. TDL agrees that pro-rated
refunds for unused time periods will be provided upon request, in the event
of service termination, except as set forth in Section 16 above, at the sole
discretion of TDL. If at any time Customer breaches any part of this
contract, Customer will be responsible for and will pay any and all
reasonable collections, attorney, and court fees and costs incurred by TDL in
enforcing this agreement.
RETURN OF SERVER
Upon termination of this contract, all managed servers shall remain the
property of TDL and are not subject to customer demands.
This agreement supersedes any written, electronic, or oral communication
Customer may have had with TDL or any agent or representative thereof,
and constitutes the complete and total agreement between the parties.
If any provision of this agreement is determined to be unenforceable or
all other provisions shall remain in full force and effect and said
shall be reformed only to the extent necessary to make it enforceable.
This agreement shall be governed by the laws of the State of California.
Customer further consents to service of legal process by e-mail (or at the
discretion of TDL, ordinary mail postage prepaid) to the last known e-mail
or street address provided by Customer. It shall be Customer's duty to
notify TDL of any change in street or e-mail address.
Any notice or other communication required herein, shall be in writing and
shall be deemed to have been given only when sent by registered or certified
mail, return receipt request, addressed to the parties at the name and
indicated below their signatures herein, as amended by updated information
as required by Section 12 herein.
By continuing to maintain any services with TDL, Customer is stating
and acknowledging that Customer has read the terms and conditions
aforementioned and that Customer understands such terms and conditions
and agrees to be bound by them.
IN WITNESS WHEREOF, the parties have hereunder set their hands and
seals as of the date first written.
The Diamond Lane