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 third party service providers, or the actions of individuals who use your products and services (“End Users”).
Brain-Core provides a number of services and products to its customers, which are collectively referred to in these TOS as the “Services”. Regardless of whether you pay for a Service or it is provided as part of a package or for free, any Service you request or allow to be provided by Brain-Core is included as part of the “Services” we refer to in these TOS and the Policies. All Services are subject to each of our Policies. Services may also be provided by third parties and their terms of service or use that may contain additional or different terms will also apply to your use of their services. We may change the specifications or details of the Services at any time but we have no obligation to change the Services. Additionally, the third parties we contract with to provide Services may change their offering between the time of purchase and the date the Services are delivered. We will use commercially reasonable efforts to inform you of changes to the Services
Brain-Core offers a number of different products and services, including those listed below. These TOS and our Policies apply to all Services, whether or not listed below. Details are available on the websites indicated and the details at those websites does not modify or supplement these TOS or our Policies.
Terms That Apply to All Hosting Services.
Our Hosting accounts are allocated bandwidth depending on the package you select. The bandwidth for Services purchased does not rollover and is not creditable across periods. In the event you require more bandwidth than you have purchased, your account may be suspended until the next period, you may purchase additional bandwidth by upgrading your account, your account may be terminated for a violation of the terms of the package you purchased, or we may charge you an additional fee for the overage, in our sole discretion.
In using our hosting Services, you may not place excessive burdens on our CPUs, servers, or other resources, including our customer support services. You understand that bandwidth, connection speeds, and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services, including suspension or termination of your account or a reduction in bandwidth available for your use (also known as bandwidth throttling), in our sole discretion. 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.
Terms That Apply To Particular Hosting Services.
For all Unmanaged Hosting Services, you are solely responsible for providing the firewalls and software and for all installation, maintenance, security, and backup for the Unmanaged Hosting Services.
If you utilize Managed or Unmanaged Hosting Service with Root Access, you acknowledge that you are solely responsible for any changes you make while using such access and Brain-Core may not be able to correct any changes, recover data, or reverse any damage you do when using Root Access capabilities.
Email Hosting enables a user to use specific Services, including cPanel services, to create or delete email accounts, manage passwords, set mailbox space quotas, or configure other server-specific settings. Email Hosting services are subject to certain storage limitations and we auto-delete email in your trash or deleted folder after such email becomes more than thirty (30) days old in order to help you manage storage limits. We may also delete mail in your spam or bulk mail folder after such email becomes more than thirty (30) days old in order to help manage storage limits. Notwithstanding any automatic complimentary backup services, you should backup and save your emails locally to ensure they will be available when needed. If an email is deleted, we will use commercially reasonable efforts to retrieve such email but cannot guarantee recovery of any emails. Email accounts may be subject to storage quotas specified in a particular package.
Our Email Hosting Services do not ensure that your inbound and outbound emails will be delivered; settings beyond our control may impact email deliverability, including emails being sent to a spam folder or emails not being delivered at all. IP address blacklisting beyond our control may also affect email delivery.
You will not have physical access to any of the servers on which your data is stored. These servers will often be shared with third parties. Use by any third party may affect your use and administration of the server. You shall not take any actions to limit the use of or alter the server or Service functionality or the functionality of any related equipment.
cPanel is provided through a third party. When you subscribe for use of cPanel with any of the Services, you agree to be bound by cPanel’s End User License Agreement, available at: http://cpanel.com/legal-store.html. Please be sure to review cPanel’s End User License Agreement before use of cPanel-related Services.
Enrollment; Account Information
You warrant that before you use any of the Services or sign up for an account that you are at least 18 years of age and have the authority to bind yourself or the entity you represent to these TOS. You may be subject to a credit check and screening for potential fraud and accurate information must be supplied for purposes of this screening. Further, before using the Services, you represent and warrant to Brain-Core 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, which come from using the Services in particular, and doing business on the Internet in general; and (iii) you will provide us with material that may be implemented by us to provide the Services.
You are required to provide us with accurate information when setting up your account. You must also keep this information, including your email address, up to date during the course of our relationship. On occasion, we may need to communicate with you by email about the Services. We have no responsibility, or liability, for interruptions in the Services, or damages of any sort, based on email communications that are misdirected or blocked by a third party application as a result of your failure to maintain updated account and contact information or for circumstances beyond our control.
You are responsible for all actions that are performed with, by, or under your account credentials whether done by you or by others. All account access, password, and other security measures are your responsibility. Brain-Core is not liable for any damages, direct or indirect, that result from unauthorized account access or use.
You agree to give Brain-Core permission to access your accounts for the purpose of troubleshooting technical issues with the account or server and to confirm compliance with all of our policies. We also conduct automated scans of data for security purposes and reserve the right to change permissions, modify files or quarantine files that are deemed to be malicious in nature.
Term of Agreement; Billing & Payment.
We are not bound to perform Services until we receive payment from (the “Effective Date”). We will begin delivery of the Services on the Effective Date and continue until the date set out on the page describing the Services. If the page describing the Services does not contain an Initial Term, the Initial Term shall be one month.
Regardless of the method of termination by you, valid proof of account ownership and authorization to cancel are required to terminate an account.
Termination for Convenience.
Either party may terminate the Services for convenience upon fifteen (15) days prior by providing written notice to the other. If you terminate for convenience, you will be responsible for all charges for the duration of the then active Initial or Renewal Term.
Before cancelling, please contact us and request an escalation of your issue if your cancellation is due to unsatisfactory services or an unsatisfactory answer to a previous issue. If your agreement with us is for a set term, please contact us prior to canceling to determine what your charges will be in connection with the termination.
We reserve the right to immediately suspend or cancel the Services without notice: (a) for a violation of these TOS, including any of our Policies; (b) for your failure to pay any amounts due, (c) to prevent a service interruption by an Internet Service Provider or other network services provider, or (d) to protect the integrity of Brain-Core’s network or the security of the Services. You are not entitled to notice or protest should we exercise these rights. Upon termination, your account will be closed, data deleted, and all fees and charges due and payable must be paid to us. Once your account is closed, we have no responsibility to: (x) forward email, or other communications or (y) maintain any data backup that predates the termination date. If allowed, you are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications. If we suspend or terminate your use of our Services because you have violated these TOS, including any of our Policies, we will not provide you with a credit.
You may terminate the Services upon the occurrence of a material breach by Brain-Core, which has not been cured within ten (10) days of our receipt of written notice of the breach. A material breach does not include any of the items listed in Section 19(b). Notice of a material breach must contain sufficient detail for us to identify the breach and attempt to take corrective action.
Use of the Services
Your use of the Services is governed by these TOS, including our Policies. Brain-Core provides no guarantee that the Services will be uninterrupted, or continuous, or that you will be able to access Brain-Core’s network at a particular time, or that any data transmitted by Brain-Core is accurate, error free, virus free, secure, or inoffensive.
You may provide us with a written or verbal endorsement of our Services in connection with your use of the Services (“Endorsement”). The Endorsement will be the actual first-hand account of your experience using our Services and we may, at our discretion, use the Endorsement to promote our Services in-person, in print, online, and all other media. We may also edit the Endorsement for brevity or other reasons, so long as it is consistent with your original Endorsement. In connection with our use of your Endorsement, you hereby agree that we may use your first name, last initial, home state, voice or likeness, and/or contact information in connection with its publication of the Endorsement.
Licenses; Intellectual Property; Data Ownership
Services performed or provided by Brain-Core are not a “work made for hire” and we hereby grant you a license to use the Services and technology under the terms of these TOS, including our Policies. The license is non-exclusive, non-transferable, non-sublicensable worldwide, and royalty free and terminates when you or Brain-Core terminates the Services.
All right, title and interest in Brain-Core’s technology shall remain with Brain-Core, or Brain-Core’s licensors. You are not permitted to circumvent any devices designed to protect Brain-Core, or its licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO Brain-Core), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. No oral or written information or advice given by Brain-Core, its employees, agents, owners, directors, officers, or affiliates pursuant to these TOS, or otherwise, shall create a representation or warranty or in any way increase the scope of any representations and warranties set forth in these TOS. Brain-Core does not represent or warrant that the Services are complete or free from defects or errors.
Brain-Core 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. Brain-Core is not responsible for any loss of data, for any reason. Brain-Core 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.
Brain-Core is not liable, and expressly disclaims any liability, for data breaches or data compromise caused by your failure to keep web applications including plugins up to date.
Brain-Core 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, either express or implied, made by these third party entities to Brain-Core shall be passed through to you, nor shall you claim to be a third party beneficiary of those warranties.
SOME STATES DO NOT ALLOW Brain-Core TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.
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 Brain-Core has no liability, of any sort, for content you or your customers access from the Internet.
In no event shall Brain-Core be liable to you in connection with these TOS or the Services, regardless of the form of action or theory of recovery, for any: (a) data loss, (b) direct, indirect, special, exemplary, consequential, incidental, or punitive damages, even if that party has been advised of the possibility of such damages; or (c) lost profits, lost revenues, lost business expectancy, business interruption losses, or benefit of the bargain damages. For the purposes of this paragraph only, the term “Brain-Core” shall be interpreted to include Brain-Core’s employees, agents, owners, directors, officers, and affiliates.
Notwithstanding anything to the contrary contained in this policy, Brain-Core shall not be liable for any indirect or consequential damages, including damages for lost profits, loss of opportunity, loss of sales, or loss of search engine rank, suffered by you, your users, your clients, and your visitors, during periods of scheduled maintenance, service suspensions, and violation of these Policies.
IN NO EVENT WILL BRAIN-CORE’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY BRAIN-CORE FROM YOU FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Brain-Core will not be held responsible for any: (i) force majeure events, below (ii) problems or service outages caused due to reboots during standard maintenance periods, or (iii) Scheduled Downtime, does not apply to disruptions to your use of the network because of a violation of these TOS, including our Policies.
You agree to indemnify, defend, and hold harmless Brain-Core and its personnel, parent, subsidiaries 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, 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, including any data migration-related efforts you request from Brain-Core personnel or authorize Brain-Core personnel to conduct; (ii) any violation by you of these TOS or any of Brain-Core’s Policies, including those violations that result in a disruption of the network; (iii) any breach of any of your representations, warranties, or covenants contained in these TOS, including the Policies; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of these TOS or the Services. 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.
Brain-Core 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 Services provided by Brain-Core hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to Services that are fully owned by Brain-Core. It does not extend to products or services provided by third parties. If contained and permitted in its agreements with third-party suppliers, Brain-Core shall flow down applicable intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying Brain-Core promptly in writing of the claim and giving Brain-Core full authority, information, and assistance for the defense and settlement thereof. If an infringement claim has occurred, or in Brain-Core’s opinion is likely to occur, Brain-Core shall have the right, at its option and expense, either to: (i) procure for you the right to continue using the Service(s); (ii) replace with the Service(s), regardless of manufacturer, performing the same or similar function as the infringing Service(s), or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate the infringing or affected Services and refund the Fees charged by us for the period in which the Services were unavailable.
Notices will be sent to you at the email address in your account. It is your obligation to ensure that we have the most current email address for you by keeping your account information up to date.
Please refer to our website, http://www.brain-core.net, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other Brain-Core Policies should be directed to:
50 Chin Swee Road #09-04 Thong Chai Building