TotalChoice Hosting: Colocation Terms of Service

Welcome to TotalChoice Hosting LLC
This Terms & Conditions Agreement ("Agreement") outlines the terms of service specifically for our Colocation Hosting Services. By using our services, you acknowledge that you have read and agree to comply with all the provisions in this document and any associated policies referenced herein. TotalChoice Hosting LLC ("TCH") reserves the right to revise or amend this Agreement, its supplements, or any related policies as necessary. Any such modifications will become effective immediately upon publication on our website ("TCH website"). Your continued use of our services following the posting of these changes indicates your acceptance and adherence to the updated terms. We encourage you to regularly review this Agreement to ensure your understanding of your obligations. All notices concerning this Agreement and all its subsections shall be sent and delivered using the My TotalChoice Hosting support portal (“MYTCH”) unless otherwise stated.

1. Term and Payment for Colocation Hosting Services

1.1 Multi-Term Contract
Multi-term contract services are regulated by contractual agreements spanning defined durations in excess of thirty (30 days). The contract's inception aligns with the day of service activation, thereafter serving as the benchmark for all renewals. These contracts seamlessly renew on each anniversary unless formally terminated in accordance with Section 1.3 TCH is not liable for damages resulting from a delay in Service Provisioning. The quote form, comprehensively outlining term specifics, from duration to costs and anticipated production, serves not merely as a proposal but as the definitive contract itself. It signifies the client's acknowledgment and acceptance of TCH's Colocation Terms of Service, which is accessible here in our terms of service and available on the TCH website.

1.2 Non-Multi-Term Contract
Non-Multi-Term Contracts are regulated by contractual agreements spanning defined durations of thirty (30 days). These Agreements are effective on a month-to-month basis. The contract's inception aligns with the day of service activation, thereafter serving as the benchmark for all renewals. Non-Multi-Term contracts are automatically entered upon subscribing to 1U, 2U, Quarter, and Half Rack shared colocation services. TCH is not liable for damages resulting from a delay in Service Provisioning. These contracts seamlessly renew on each anniversary unless formally terminated in accordance with Section 1.4

1.3 Cancellation Policy (Multi-Term Contract)
If a client wishes to cancel or terminate their multi-term contract before the end of the agreed-upon term, the following conditions apply. Early Termination charges will be assessed and are payable from the date of cancellation or termination. These charges are calculated as the full Monthly Recurring Charge (MRC) times the remaining months in the service term. Additionally, any outstanding invoices must be settled in full before the release of any collocated equipment. The client agrees that these Early Termination charges are reasonable and do not constitute a penalty. All cancellation requests must be made in writing through a Help Desk Ticket via MYTCH.

1.4 Cancellation Policy (Non Multi-Term Contract)
Non-Multi-Term Contract Colocation Hosting Service cancellations require thirty (30) days written notice. You must provide TCH a written cancellation notice thirty (30) days in advance. Additionally, any outstanding invoices must be settled in full before the release of any collocated equipment. All cancellation requests or notices must be submitted to TCH in writing via a Help Desk Ticket Submitted to MYTCH.

1.5 Default and Cure
In the event of a default by either party in the performance of its material duties or obligations under this Agreement, including failure to make any payments due, and such default is not rectified within five (5) days after written notice is given, the non-defaulting party may terminate this Agreement upon 30 days written notice to the defaulting party. Certain defaults by you may result in immediate service suspension and or termination, and those are outlined throughout this agreement. The written notice must be submitted via MYTCH.

1.6 Charges
You agree to pay all charges associated with using the Services at TCH's current prices. These charges do not include applicable taxes. You are responsible for paying all federal, state, and local taxes related to the Services, except for taxes based on TCH's net income.

1.7 Price Increases
TCH reserves the right to change the prices of its services. Your continued use of the Services after the effective date of the price increase constitutes your acceptance of the new prices.

1.8 Payment
All charges for Services must be paid in advance at the current prices. Upon entering this Agreement, you must choose to pay by credit/debit card or PayPal. By selecting a payment method, you authorize TCH to charge your account accordingly. You are responsible for updating TCH with any changes to your payment method or billing address. TCH may issue periodic invoices for any additional charges. You agree to pay the invoiced amounts by the specified due date. Failure to pay fees and taxes by the due date will incur late charges. If fees remain unpaid five (5) days after the due date, TCH may suspend services, terminate this Agreement, and/or delete your content from TCH servers. MYTCH will generate all billing-related notices and invoices.

1.9 Chargebacks, Reversals, and Retrievals
If you have any billing issues, please contact TCH promptly via MYTCH to resolve them. In case of a chargeback or payment dispute, your services may be suspended or terminated without notice, and you will incur a $100.00 chargeback fee. Outstanding balances from chargebacks must be fully settled before any services are restored.

1.9 Billing Disputes.
All payments made to TCH are non-refundable. If you wish to dispute any charges on an invoice, please contact TCH promptly via MYTCH within 60 days of the invoice date. 

1.10 MYTCH Portal
MYTCH is the customer portal for TotalChoice Hosting. It handles all aspects of billing, support, and account management for our Colocation Hosting Services. By using the services, you agree to utilize MYTCH for all related activities, including but not limited to viewing and paying invoices, submitting support tickets, and managing your account information. All notices, communications, and updates will be conducted through MYTCH unless otherwise stated.

It is very important to keep the account holder's telephone number and email address up to date in MYTCH. We strongly encourage you not to use an email address with the top-level domain (TLD) of the hosted domain, as you may not receive important notifications, such as suspension or termination notices if the service is interrupted.

1.11 Domain Services
TCH offers domain registration services. The Domain Registration Terms of Service govern these services. By purchasing or using domain registration services through TCH, you agree to comply with these terms. It is important to read and understand these terms before using the domain registration services. Sales and support for all domain services are not handled through MYTCH. For assistance with domain services, please contact:

Domain Related Support & Sales
24/7 Technical Support & Sales
(480) 624-2500

2. Use of Services for Colocation Hosting Services

2.1 Acceptable Use Policy
TCH's Acceptable Use Policy ("AUP") governs the general policies and procedures for using TCH Dedicated Server Hosting Services. The AUP is available on the TCH website and may be updated periodically. By using the Services, you agree to abide by the terms of the AUP and any modifications. TCH reserves the right to terminate your account for violating the AUP or this Agreement. In certain cases, but not all, users will be notified via MYTCH if services are suspended or terminated. TCH also has a Subpoena and Data Preservation Policy and Privacy Policy, which are available on the TCH website. By using the Services, you acknowledge that you have read these policies. 

2.3 Bandwidth and Storage Usage
You agree not to exceed the bandwidth and power usage limits in your Colocation Contract and/or this agreement. Any usage in excess of the agreed limits may incur additional charges.TCH is not liable for data preservation or backup.  TCH employs a fair use policy on all bandwidth ports sold in our standard colocation packages.  TCH will reserve the right to manage our network to ensure its stability and reliability. This may include traffic shaping, prioritizing certain types of traffic, or temporarily reducing the bandwidth available to you during periods of high demand.

2.4 Client's Property
In the event that a client fails to reclaim their equipment within a period of 14 days subsequent to the termination or cancellation of this Agreement, TCH will regard the equipment, alongside all associated data, systems, and properties, as abandoned, thereby transferring exclusive ownership to TCH. The client is obligated to manage and prepay all logistical aspects related to the shipping of servers both to and from the TCH facilities. It is pertinent to note that TCH does not store shipping materials; such materials are systematically destroyed upon the successful establishment of colocation services. Colocation Hosting Service Clients must supply their own shipping materials for equipment returns. Additionally, TCH imposes a standard hourly rate of $65.00 for labor associated with the preparation of equipment for return.

2.5 Building Access Agreement
Colocation Hosting Service Clients seeking unescorted access to any TCH facility must first execute the "Building Access Agreement." This document specifies the terms and conditions under which unescorted entry is permitted. By affixing their signature to this agreement, Colocation Hosting Service Clients confirm their understanding of and commitment to comply with all security measures, rules, and regulations set forth by TCH to safeguard its facilities, equipment, and personnel. Non-compliance with the Building Access Agreement stipulations may lead to the withdrawal of unescorted access rights.

2.6 Client Responsibilities
While TCH provides secure housing for client property, it is crucial to note that TCH does not assume liability for the client's belongings. Colocation Hosting Service Clients are responsible for the safeguarding and maintenance of their equipment within our facilities. This includes taking appropriate measures to secure data, conducting regular equipment checks, and implementing necessary security protocols. While we prioritize the security of our facilities, Colocation Hosting Service Clients are encouraged to maintain their insurance or protective measures for added assurance regarding their stored property. 

2.7 Equipment Compliance and Safety Standards
Colocation Hosting Service Clients must ensure that all equipment provided for colocation at TCH facilities is in good working order, safe, and compliant with guidelines established by recognized industry standards. It is the client's responsibility to verify that their equipment does not pose any danger or risk to the facility or other colocated equipment.

Additionally, Colocation Hosting Service Clients must adhere to the following specific requirements:

• Equipment must meet all applicable safety and operational standards defined by relevant industry regulatory bodies.
• Combustible materials or substances that could increase the risk of fire are not permitted within the colocation rack space.
• All devices must be configured and maintained in a manner that does not compromise the integrity and security of the colocation environment.
• Equipment must be installed with the proper airflow configuration to ensure hot air exhausts into the designated hot aisles. Incorrect equipment installation regarding airflow direction will incur an "Equipment Reversal Fee" of $65.00.

Failure to comply with these standards may result in the immediate removal of non-compliant equipment from the facility and potential termination of the colocation service agreement. TCH reserves the right to inspect equipment to ensure compliance and to enforce these terms as necessary to maintain the safety and integrity of its facilities.

2.7 Complimentary Basic Smart Hands Services
TCH offers Complimentary Basic Smart Hands Services for colocation Colocation Hosting Service Clients, provided without warranty and with no liability assumed by TCH for the performance of these services. Power cycles are available 24/7/365, ensuring continuous operational support. While our Data Center Staff is available around the clock, our technicians may be assisting other customers or may need to be dispatched from another facility, which can lead to waiting times. Therefore, we request that appointments for additional services such as storage drive replacements and basic troubleshooting be scheduled in advance during regular business hours (09:00 AM – 05:00 PM EST, Monday through Friday, excluding holidays). In the event of an emergency, we will endeavor to address your needs as promptly as possible. Services required outside of these hours or that exceed the basic offerings will be billed at TCH’s standard hourly rate of $65.00

2.8  Enhanced Smart Hands Services
TCH offers an array of additional services under the designation "Enhanced Smart Hands," which are available for an extra charge. For a detailed overview and pricing, Colocation Hosting Service Clients are encouraged to visit the colocation pages on TCH's website. All standard terms and conditions specified in section 8 remain applicable to these services. An associated Service Level Agreement (SLA) governs the delivery and quality of these services.

 2.9 Enhanced Smart Hands Services – Service Level Agreement
Should TCH fail to adhere to the 15-minute response time outlined in this SLA, the client is entitled to a credit amounting to 10% of the monthly fees for the "Enhanced Smart Hands" service for the month in which the delay occurred. This credit represents the full extent of TCH's liability for failing to meet the specified response time. TCH assumes no further liabilities or compensations beyond this account credit.

2.10 Redundant Power
For a power setup to be classified as "Redundant Power," it must include both a Redundant power circuit and a Primary power circuit, with the total power utilization of both circuits not exceeding 40%. Should TCH identify that a Redundant power circuit is being utilized as a Primary power circuit, this circuit will be reclassified accordingly, and the client will incur charges at the full circuit rate retroactive to the date of installation.

3. Enforcement and Vendor Relationship for Colocation Hosting Services

3.1 Investigation of Violations
TCH will investigate any reported or suspected breaches of this Agreement, its policies, or complaints. Necessary actions are taken to safeguard our systems, facilities, customers, and third parties.

3.2 Actions
TCH retains the right and exercises absolute discretion to restrict or remove any content that violates this Agreement, related policies, or guidelines. Additionally, we may take corrective action if any content is objectionable, potentially infringing on third-party rights, or in violation of laws. Such actions may include issuing warnings and suspending and/or terminating services. We reserve the right to terminate repeat infringers, but this doesn't entail continuous monitoring or editorial control over content distribution. TCH's corrective actions do not obligate us to refund fees paid in advance.

3.3 Disclosure and Data Preservation
In compliance with relevant laws and legal requests, TCH may access and disclose necessary information, including user profile details, IP addresses, traffic data, usage history, and content on any colocated equipment. TCH handles all legal requests for information following our Subpoena & Data Preservation Request Policy. Users will be notified via MYTCH if such disclosures are made unless prohibited by law. We reserve the right to report suspected unlawful activity to law enforcement, regulators, or relevant third parties, balancing user privacy with our obligation to maintain legal compliance and infrastructure security.

3.4 Vendor Relationships: TotalChoice Hosting (TCH) maintains exclusive relationships with its vendors and service providers. Clients agree that any interactions with TCH’s vendors, subcontractors, or service providers that are facilitated through the services provided by TCH are exclusively managed by TCH.

3.5 Prohibited Direct Contact: Clients shall not, under any circumstances, directly contact, engage, or negotiate with TCH’s vendors, subcontractors, or service providers for services that are being provided or could reasonably be provided by TCH. All requests, inquiries, or communications related to such services must be directed through TCH.

3.6 Breach of Agreement: Any attempt by a client to circumvent TCH by directly engaging with TCH’s vendors will be considered a breach of this Agreement. TCH reserves the right to terminate services immediately without refund in the event of such a breach. Additionally, TCH may seek legal remedies, including but not limited to injunctive relief and monetary damages.

3.7 Non-Disclosure: Clients shall not disclose any confidential or proprietary information related to TCH’s vendor relationships, pricing, or service agreements. Breach of this confidentiality will result in termination of services and potential legal action.

4. Intellectual Property Rights for Colocation Hosting Services

4.1 Your License Grant
You grant TCH a non-exclusive, worldwide, royalty-free license during the Initial Term and any Renewal Term to use your content as necessary for rendering and operating the Services under this Agreement. This includes caching materials distributed via the Services, including third-party content, without infringing upon your or any third party's intellectual property rights.

4.2 Materials and Intellectual Property
All materials, including software, data, or information provided by TCH or its suppliers pursuant to this Agreement, as well as any know-how, methodologies, equipment, or processes used to provide the Services, are the sole property of TCH or its suppliers. Unauthorized copying, reverse engineering, or creating derivative works based on such software is prohibited except as permitted in this Agreement. Violations of patent, copyright, or trade secret rights due to failure to abide by this Agreement may result in legal responsibility.

4.3 Trademarks
You authorize TCH to use your trademarks in a restricted capacity to fulfill the obligations outlined in this Agreement. This authorization does not grant a comprehensive trademark license, and no additional entitlements regarding trademark use are conferred. TCH's usage rights for your trademarks cease upon termination of this Agreement.

5. Warranty & Warranty Disclaimer for Colocation Hosting Services

5.1 Customer and/or Third Party Acts
TCH shall not be held responsible for any non-conforming Services caused by you or your customers. TCH disclaims liability for data loss or corruption during transmission or failure to send or receive data due to events beyond our reasonable control.

5.2 Disclaimer of Warranties
TCH provides all services, hosting packages, systems, and products under this agreement without any express or implied warranty. TCH does not guarantee uninterrupted, error-free operation or complete security of its services and expressly disclaims any warranties related to patent, copyright, trade secret, or trademark infringement. All services are provided "as is" and without any warranty against failure of performance, including hardware or communication systems failures. Except as expressly provided in this agreement, TCH disclaims all warranties, including implied warranties of merchantability, fitness for a particular purpose, or conditions of quality.

5.3 Your Warranties and Representations to TCH
By entering into this Agreement, you affirm, represent, and commit to TCH the following:

• You are either at least eighteen (18) years of age or a duly organized and validly existing entity.
• You possess the legal capacity and authority to engage in and abide by the terms of this Agreement.
• The Services will be utilized exclusively for legal purposes and in strict adherence to this Agreement, as well as all relevant policies and guidelines.
• You acknowledge and agree to assume financial responsibility for all activities conducted through your account.
• The accuracy of materials distributed or made available via the Services, including but not limited to your content, descriptive claims, warranties, guarantees, nature of business, and business address, has been verified or will be verified.
• Your content and/or any software you install or provide neither infringes nor will infringe upon any rights of third parties, including but not limited to intellectual property rights, nor violates any applicable laws, regulations, or ordinances.

6. Limitation and Exclusion of Liability for Colocation Hosting Services

6.1 Liability Limitations
TCH shall not be liable for damages, unauthorized access to, alteration, theft, or destruction of information provided to us, whether distributed or made available via the services. Under no circumstances shall TCH be liable for consequential, exemplary, special, incidental, or punitive damages, even if advised of the possibility of such damages. TCH's liability to you for any reason and upon any cause of action is limited to the amount paid to us by you under this agreement during the thirty (30) days immediately preceding the date on which such claim accrued. This limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees for the services set by TCH under this agreement have been and will continue to be based upon this allocation of risk. Consequently, you release TCH from any obligations, liabilities, and claims in excess of the limitation stated in this Section 6.1. Please note that in some states where the exclusion or limitation of liability for consequential or incidental damages is not allowed, our liability is limited to the extent permitted by law.

6.2 Interruption of Service
By accepting these terms, you acknowledge that TCH is not responsible for any delays, outages, or interruptions in service provision. You also acknowledge that TCH is not liable for delays or failures in fulfilling its obligations outlined in this Agreement, particularly when arising from events or circumstances beyond its reasonable control. These can include but are not limited to, acts of God, mechanical or electronic failures, communication breakdowns, or failures from third-party suppliers.

6.3 Scheduled and Emergency Maintenance
By accepting these terms, you acknowledge TCH's authority to suspend services for maintaining, repairing, or upgrading its systems and network. While TCH will make reasonable efforts to notify you of upcoming maintenance via our Status Page, there is no obligation to provide advance notice in every instance. Scheduled maintenance notifications, updates on service status, and historical uptime data for our data centers and services are available on the TCH Status Page. TCH is not liable for downtime or service outages during scheduled or emergency maintenance. For real-time updates on service status, maintenance, and emergency notices for both service and non-service affecting issues, please refer to our Status Page.

7. Miscellaneous for Colocation Hosting Services

7.1 Confidentiality
Both parties agree to keep all Confidential Information disclosed by the other party confidential and to use it solely for this Agreement. "Confidential Information" includes information related to the Services, proprietary information, business or financial affairs, customer data, and more. Exceptions to this confidentiality obligation include information in the public domain, independently developed information, or information received from a third party without restrictions. The parties may disclose Confidential Information if required by law, provided they give written notice to the other party. Upon termination of this Agreement, each party shall promptly return all Confidential Information from the other party. This provision remains in effect for two (2) years after termination.

7.2 Governing Law and Venue
This Agreement is governed by and interpreted in accordance with the laws of the State of Michigan, without regard to its conflict of law provisions. Both parties agree that any dispute arising out of or relating to this Agreement will be brought exclusively in the state or federal courts located in the County of Oakland, Michigan. Both parties irrevocably submit to the personal jurisdiction of these courts.

7.3 Notices
All notices, reports, requests, or other communications under this Agreement must be in writing and delivered via MYTCH unless otherwise specified. Notices will be considered given when they are submitted through MYTCH. It is important to keep your contact information, including telephone number and email address, up to date in MYTCH. We strongly recommend not using an email address associated with the hosted domain to ensure you receive important notifications, such as those regarding suspension or termination of services.

7.4 Severability
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

7.5 Waiver
TCH's failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. No waiver by TCH of any provision of this Agreement shall be effective unless explicitly stated in writing and signed by an authorized representative.

7.6 No Fiduciary Relationship
TCH is not your agent, fiduciary, trustee, or any other form of representative. The provisions of this Agreement are solely intended for the benefit of the parties involved and do not confer any legal or equitable rights, remedies, or claims upon any third party. This Agreement, along with all its representations, warranties, covenants, conditions, and provisions, is designed for the exclusive benefit of the parties involved.

7.7 Assignments
You may not transfer or assign your rights, duties, or obligations under this Agreement without TCH's written consent. Only individuals listed in the TCH billing portal are recognized as duly authorized representatives of any Dedicated Server hosting account. TCH reserves the right to assign its rights and obligations under this Agreement and may engage affiliates and/or agents to fulfill its duties and exercise its rights without requiring your consent. However, this Agreement remains binding upon and benefits the parties and their successors and assignees, subject to the aforementioned restriction.

7.8 Non-Waiver Clause
Should TCH fail to insist on strict adherence to any provision of this Agreement, such failure shall not be construed as a waiver of TCH's right to enforce said provision or any other provisions in this Agreement at a later time.

7.9 Force Majeure
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

7.10 Entire Agreement
This Agreement, along with any documents incorporated by reference or related policies, constitutes the entire agreement between you and TCH regarding the Colocation Hosting Services. It supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter herein.

7.11 Amendment
TCH reserves the right to modify this Agreement at any time by posting the revised terms on the TCH website. Your continued use of the Services following such changes constitutes your acceptance of the revised terms.

7.12 Contact Information
If you have any questions about this Agreement or the Colocation Hosting Services, please contact TCH at the following address:

TotalChoice Hosting LLC
24700 Northwestern Hwy, Suite 537
Southfield, MI, USA 48075