Terms of Service

Updated on January 26th, 2013

The IRC Company, Inc. (“The Company”) agrees to furnish Service(s) to the Subscriber, subject to the following Terms of Service (TOS). Use of The Company’s Service constitutes acceptance and agreement to The Company’s Acceptable Use Policy (AUP) as well as the TOS. This Agreement shall be construed in all respects in accordance with the laws of the State of Delaware.

All disputes, controversies, or claims arising out of or relating to this contract shall be submitted binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect.

1. Refunds and Disputes

All payments to The Company are non-refundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported by the Subscriber to The Company within 30 days of the time the dispute occurred. Should the Subscriber dispute any credit card charge that The Company believes is a valid charge under this Agreement, the Subscriber shall agree to pay The Company reasonable interest, bank service fees, collection fees, and/or attorneys fees.

2. Failure to Pay

The Company may temporarily deny Service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest, collection fees, and/or attorneys fees.

3. Collection Fees

In any litigation, arbitration, or other proceeding by which The Company seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable collection and/or attorney fees, and costs and expenses incurred.

4. Account Cancellation

Subscriber must provide The Company 30 days advance notice to cancel this Agreement or any individual Service. Where the Subscriber and The Company have executed a more restrictive agreement, that agreement shall supersede this clause. Notice of cancellation may be provided by postal mail or by e-mail to care@blacklotus.net . Cancellation notices submitted by e-mail must be acknowledged by The Company with an automatically assigned ticket number. If this ticket number is not received, the Subscriber should not assume that the cancellation notice has been received. Cancellation requests by postal mail should be sent by certified mail or courier with signature confirmation service to:

The IRC Company, Inc.
1000 N. West St., Suite 1200
Wilmington, DE 19801

5. Invoicing and Treatment of Past Due Accounts

The Company shall send all invoices by electronic mail at least 10 days prior to the Service due date. The Company does not send invoices via postal mail. It is the responsibility of the Subscriber to review invoices as they are generated and remit payment prior to the stated due date.

In the event that the Subscriber’s account becomes past due, The Company may choose to suspend the Subscriber’s account and any other Services assigned to the Subscriber. Past due accounts may be subject to past due fees of $35.00 plus a 10% annual rate of interest, at the discretion of The Company.  Should a Subscriber’s account remain past due after any Service suspension, the entire account and all related Services may be terminated without further notice.

6. IP Address Ownership

IP address space issued by The Company and its subsidiaries are non-portable and can be used only in conjunction with Services under this Agreement. Upon termination of this Agreement, all IP address space issued by The Company shall be immediately returned. Additionally, IP address space issued by The Company can be revoked in the following circumstances: (1) At any time after such IP address space is used by the Subscriber as justification to obtain a Regional Internet Registry (RIR) direct IP space assignment or (2) At anytime if the Subscriber fails to properly justify its IP space pursuant to the rules set forth by the American Registry for Internet Numbers (ARIN). The Company retains the exclusive right to interpret ARIN rules as the pertain to this Agreement.

7. Service Level Agreements (SLA)

The Company may offer either a Best Effort SLA, Guaranteed SLA, or Proactive SLA with some Services. “Best Effort” shall be interpreted to mean that The Company intends to achieve a certain level of performance, except that no remedy is available to the Subscriber in the event of a failure to perform. “Guaranteed SLA” shall be interpreted to mean that The Company will issue, upon request by the Subscriber, an internal account credit equal to 1/30th of the monthly service fee of the applicable Service line item for each day in which the SLA is not met. “Proactive SLA” shall be interpreted the same as “Guaranteed SLA,” with the exception that The IRC Company, Inc. shall make reasonable efforts to proactively issue SLA credits as appropriate. SLA credits are not available in the following circumstances: (1) During the first 72 hours from commencement of the applicable Service, (2) When total aggregate Service availability for the billing period is within SLA compliance, or (3) When The Company’s failure to meet advertised service levels is the direct result of distributed denial of service (DDoS) or other type of attack by one or more third parties causing an interruption to the Subscriber’s Service where the attacks exceed the subscribed thresholds. The total value of SLA credits shall not exceed 50% of total monthly cost of any applicable Services.

8. Responsibility to Maintain and Provide Backup Data

In no case shall The Company be liable to the Subscriber or any third party for any loss of data resulting from its performance under this Agreement. It is the responsibility of the Subscriber to maintain current backup data in case of a loss, system or network failure, or negligence by either party. The Company shall not be liable to the Subscriber or any third party for losses or damages resulting from attempts made in good faith to restore service to damaged or corrupted media on behalf of the Subscriber. The Company shall not be required to assist the Subscriber or any third party with data recovery or provisioning of backup data in the event that this Agreement is cancelled or terminated.

9. Content Liability

The Company takes no responsibility for the manner in which the Subscriber or any third party chooses to use the Service. The Company shall not advise, moderate, nor guarantee the suitability or legality of any type of content for any particular purpose. Subscriber is solely responsible for obtaining appropriate legal advice to ensure compliance with The IRC Company, Inc. AUP and any laws or regulations that may be applicable. The Company’s assistance to the Subscriber with technical issues shall not be construed as an endorsement of any content or a specific activity for which the Subscriber is responsible.

10. Indemnification

Subscriber shall indemnify and hold harmless The Company for any losses, claims, damages, awards, penalties, or injuries arising from its performance under this Agreement.

11. Waiver and Assignment

A waiver by the The Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.

Subscriber shall not transfer or assign this Agreement without the prior written consent of the The Company, however, The Company may assign Agreement at anytime without consent from or notice to Subscriber. The Company reserves right to cancel customers rights under this contract at anytime without further obligation.

12. Severability

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.