Terms of Service
Updated on 01 August 2014
The Customer is the person or entity who is entering into this Agreement with RedStratus. The Customer is the sole owner of the account. The Customer shall promptly notify RedStratus in the event that the Customer becomes aware of any violation of the terms of this Agreement. Customer will be solely responsible for the security and confidentiality of the account information, including user names and passwords, and will ensure that no third party uses the account.
The Customer is solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services. The Customer agrees to fully comply with all of the obligations and restrictions set forth in the Acceptable Use Policy. The Customer agrees to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due and comply with any and all laws applicable to the use of the Services.
Use of Service
Customer shall use the Services solely for its intended purpose in accordance with this Agreement. Customer shall provide RedStratus with all information, assistance and materials as reasonably required for RedStratus to activate and operate the Services.
RedStratus has the right to monitor the Website, and in its sole discretion to remove any content that is found objectionable for any reason, without prior notice to the Customer. This includes but is not limited to: Pornography, Spamming, Phishing Scams, Illegal business practices, any material infringing on National or International Copyright.
Customer acknowledges that RedStratus may provide the Services using its own infrastructure or that RedStratus may engage third parties to provide or enable elements thereof. RedStratus will not arbitrarily make changes to the Services. However, from time-to-time, RedStratus may make changes to address technical issues and/or ensure the stability of the network and during this time the Services may be unavailable. RedStratus will use commercially reasonable efforts to provide the Customer with notice of anticipated unavailability.
Subject to the Customer’s compliance with all of the terms and conditions of this Agreement, RedStratus shall provide the Services to the Customer during the term of this Agreement in accordance with the commitments made in the Service Level Agreement. In the event of a failure by RedStratus to meet the obligations defined within the SLA, the Customer’s sole and exclusive remedy and RedStratus’ sole obligation are the issuances of service credits as set forth in the Service Level Agreement.
Certain aspects of the Services may be in beta form as designated by RedStratus. In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any SLA, indemnity, representation or warranty that RedStratus provides herein does not apply to the Beta Services. RedStratus reserves the right to terminate the Beta Services at any time, even if Customer has relied on them as a material inducement to enter into this Agreement. Redstratus makes no guarantee that Beta Services will be put into production.
If the Customer obtains or orders a dedicated IP address from RedStratus, the Customer has the right to use this IP address only during the Term and subject to this Agreement. Upon termination or expiration of this Agreement for any reason, the Customer will have no further right to use this IP address.
Elements of the Services are duplicated for disaster recovery purposes. These backups are designed to restore the Services in an emergency. Data restored from a backup may not be formatted in the original manner, and may not capture all data. RedStratus has no obligation to Customer, or any third party, to restore all of the Customer’s content, or liability for failure to do so.
Customer Roster & Trademark Use
By using this Service, the Customer grants RedStratus permission and a royalty-free license to list or display applicable trademarked name(s) and logo in the client roster of RedStratus. This license will terminate upon the end of the term of the Agreement.
All Fees are due upon receipt of payment request or invoice. Fees applicable to any renewal term will be at our then-current rates, provided that RedStratus has notified Customer that an adjustment will take effect at the time of renewal prior to the date by which Customer may opt out of the applicable renewal.
If the Service has a cap on Customer’s use of the Services (e.g. bandwidth consumption) and the applicable cap is exceeded, overages may apply.
Unless otherwise stated, the Customer will be charged the Fees beginning on the effective date of the Service. If no schedule is stated, then Fees are due in full in advance, except that Fees for applicable overages shall be invoiced and charged (as the case may be) in arrears. All Fees are payable in U.S. dollars and are not refundable except as expressly stated herein.
Unless otherwise specified, RedStratus will collect the Fees by debiting the electronic payment method that Customer has provided to RedStratus. Credit, debit, or other similar sources of payment may be debited up to one week prior to the due date. Customer must keep the method of payment current, and able to be debited. It is the Customer’s responsibility to ensure that the Fees are paid. If payment is not made by or on the due date, RedStratus may charge the Customer a late fee on the unpaid balance of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
RedStratus may be required to collect taxes on the Services. Taxes (excluding taxes on RedStratus income) will be added to the Fees and the Customer agrees to pay them, unless the Customer provides RedStratus with a valid tax exemption certificate. Further, if the Customer elects to pay via a wire transfer or credit transfer, then the Customer is responsible for any applicable transfer fees. Such amounts will be automatically added to the Fees.
If the Customer does not pay the Fees by the applicable due date, RedStratus may suspend or terminate provision of the Services and terminate this Agreement. In addition, Third Party Services, such as domain names, may be forfeited. RedStratus may also send Customer to collections, and add to the Fees any charges associated with collecting unpaid Fees. If the Services are suspended because RedStratus does not receive payment in accordance with this Agreement, RedStratus will preserve Customer’s content in accordance with its normal backup processes and procedures. After that time the Agreement will be terminated and Customer content will be deleted.
Ownership of Intellectual Property, Software & Hardware
Each party shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to the Customer shall be the sole and exclusive property of RedStratus and/or its licensors, unless specifically agreed in writing otherwise.
The Customer acknowledges and agrees that the Customer does not acquire any ownership interest in any of the servers or other hardware used to provide the Services. Similarly, RedStratus does not acquire any ownership interest in the content or data that the Customer stores on the servers or transmit via the Services.
The Customer acknowledges and agrees that third party software and hardware are used in the provision of Services. Accordingly, the Customer agrees to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
Term and Termination
The term will refer to the time period between the start of the Service and the date the Service is terminated.
The Customer may cancel the Service by written notice to RedStratus. The Service will be terminated within 3 business days after following this procedure. This will allow the Customer time to gather and transfer files before the site is removed from the system.
Termination for Breach
Without limiting RedStratus’ rights to suspend the Services, RedStratus may terminate this Agreement in the event of a material breach by the Customer upon no less than fifteen (15) days prior written notice and opportunity to cure such material breach. Notwithstanding the foregoing, RedStratus may terminate this Agreement immediately if the Customer violates the Acceptable Use Policy, whether or not the Customer subsequently cures such violation.
Expiration of termination of this Agreement shall not relieve the requirement for the Customer to pay Fees for Services provided prior to the effective date of termination.
RedStratus maintains a policy of no refunds. Due to the monthly nature of this Service, RedStratus shall not be compelled to issue a refund, pro-rated or otherwise for any reason. RedStratus reserves the right to issue a refund on a case-by-case basis at its sole discretion.
Each party will safeguard and keep confidential all confidential information of the other and will return the other’s confidential information upon request, except to the extent further retention of such confidential information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s confidential information using measures that are equal to the standard of performance used by the other party to safeguard its own confidential information of comparable value, but in no event less than reasonable care. Neither party will use any confidential information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any confidential information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose confidential information, then that party may disclose so much of the confidential information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
RedStratus represents that it shall provide the Services in compliance with its Service Level Agreement. Except for this warranty, RedStratus and its licensors disclaim any and all other warranties, express or implied relating to the services, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, or arising from a course of dealing, usage or trade practice. RedStratus specifically disclaims any warranty that the operation of the service will be uninterrupted or error free. Further, RedStratus makes no representations or warranties whatsoever, and shall have no liability whatsoever, with respect to the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over the Internet, or any intrusion, virus, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through the Internet or the servers upon which the services are provided.
Limitation of Liability
Except for RedStratus’ gross negligence or willful misconduct, RedStratus and its licensor’s cumulative liability to the Customer and all other parties for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this agreement or the use of the services or any failure or delay in delivering the services shall not exceed the total fees paid by the Customer during the period of three (3) months immediately preceding the date on which the event giving rise to the claim occurred or the pro-rata equivalent if the recurrence period is annual. Except to the extent set forth in the Service Level Agreement, RedStratus shall have no liability should there be any delay in the provision of the service.
RedStratus and its licensors shall not be liable for any special, incidental, consequential, exemplary, punitive or other indirect damages, or for lost profits or lost data arising out of the use or inability to use the services or any data supplied therewith or any failure or delay in delivering the services, even if RedStratus has been advised of the possibility of such damages. The Customer acknowledges and agrees that under no circumstance shall RedStratus assume any liability or responsibility to the Customer for suspension of service to the extent permitted by this Agreement.
The Customer shall defend, indemnify and hold RedStratus, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all losses arising out of or relating to the Customer’s (i) gross negligence or willful misconduct or (ii) violation of the Acceptable Use Policy or the law; provided that (a) RedStratus gives the Customer prompt written notice of the claim, (b) RedStratus permits the Customer sole control over the defense and settlement of the claim and (c) RedStratus reasonably cooperates with the Customer in the defense and or settlement of the claim. The Customer’s obligation includes claims arising out of acts or omissions by the Customer’s employees, users and any other person who gains access to the Services as a result of the Customer’s failure to use reasonable security measures.
Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
Severability. Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the parties’ intent.
Entire Agreement. This Agreement, and any document incorporated by reference, states the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations and other written or oral communications between the parties with respect thereto. Customer’s pre-printed purchase orders shall have no force or effect.
Force Majeure. RedStratus shall not be deemed to be in default of this Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from any circumstances beyond its reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third party network unavailability, and/or failure of telecommunication facilities.
Third Party Beneficiaries; Relationships. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, nor on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
Governing Law and Venue. This Agreement is governed by the laws of the Republic of the Philippines. The parties agree that venue and jurisdiction is proper in this court and agree not to contest notice from this court.