This agreement is between SHAWN HINES WEBDESIGN (hereinafter referred to as PROVIDER), and the on-line individual or entity applying for Internet-related Services, (hereinafter referred to as CLIENT). CLIENT agrees to an on-line, paperless subscription service, which will be automatically charged on a recurring basis until the service is explicitly cancelled by either CLIENT or PROVIDER. CLIENT acknowledges that all information provided by CLIENT is true and correct to the best of CLIENT's knowledge. CLIENT agrees that the act of submitting an online application form constitutes acceptance of all terms and conditions associated with the services applied for and that the act of online submission shall be in lieu of written signature.
CLIENT will use PROVIDER's services in a manner consistent with all applicable local, state, and federal regulations and laws. CLIENT agrees to pay and authorizes PROVIDER to charge all fees due using the payment information provided by CLIENT at the time of application.
3. DisclaimerPROVIDER will not be responsible for any damages suffered by CLIENT. PROVIDER'S service is provided on an as is, as available basis. PROVIDER gives no warranty, expressed or implied, for the PROVIDER's services, including without limitation, any warranty of merchantability or warranty of fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by PROVIDER and its employees. Any damages incurred by CLIENT due to disruption of service by PROVIDER or its providers shall be expressly limited to the fees paid by CLIENT to PROVIDER for services and shall under no circumstances include reimbursement for losses of income or other consequential damages claimed by CLIENT.
CLIENT agrees that it shall defend, indemnify, save and hold PROVIDER harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against PROVIDER, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. CLIENT agrees to defend, indemnify and hold PROVIDER harmless against liabilities arising out of:
- any injury to person or property caused by any products sold or otherwise distributed in connection with a PROVIDER server;
- (2) any material supplied by CLIENT infringing or allegedly infringing on the proprietary rights of a third party and
- (3) copyright infringement.
PROVIDER expects that its CLIENTS will fully comply with all applicable laws. A customer's failure to comply with those laws will violate this policy. By accepting this contract, CLIENTS agree to indemnify PROVIDER for the violation of any law or PROVIDER policy that results in loss to PROVIDER or the bringing of any claim against PROVIDER. This means, among other things, that if PROVIDER is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against PROVIDER plus costs and reasonable attorneys' fees.
5. Client Responsibilities
Effective use of PROVIDER's services presumes a certain degree of knowledge and skill on the part of the CLIENT. For example, it is presumed that CLIENT possesses at least a rudimentary knowledge of Internet-related processes and software applications such as e-mail, FTP, Telnet, and web-browsing. Creating and publishing a web site on PROVIDER's servers will require some knowledge of either HTML programming or the use of HTML editors, such as Microsoft FrontPage. Certain advanced applications may require a certain level of competence with CGI/Perl programming applications. PROVIDER will not be held responsible for CLIENT's inability to use PROVIDER's services due to CLIENT's lack of the requisite knowledge and skills.
6. Domain Name Registration
Domain name registration is a separate and independent service from domain and web hosting. Unless otherwise provided by contract, CLIENT accepts sole responsibility for monitoring and maintaining the status of CLIENT's domain name registrations, as well as payment of all applicable domain name registration and renewal fees. Except where provided by contract, PROVIDER does not monitor the registration status of domain names hosted on PROVIDER's servers. PROVIDER's services are independent of account usage and domain name records, and remain in effect (and billable) regardless of the status of CLIENT's domain name record. PROVIDER will provide reasonable assistance to CLIENT in the area of domain name registration and modification. Reasonable assistance may include submission of registration or modification requests to appropriate domain name registration agencies and/or supplying CLIENT with the necessary information to effect registration or modification of CLIENT domain. PROVIDER will not, under any circumstances, make changes to any part of a domain name record except nameserver and technical contact information relating to the pointing of CLIENT domain name to PROVIDER's servers.
7. Possessory Lien
PROVIDER maintains a possessory lien on CLIENT's domain name and files from the date that any associated fees are unpaid and due, including late fees or other charges, and for expenses reasonably incurred in collection of those fees. In the event of the exercise of this lien, release of CLIENT's domain name and/or files shall be at the sole discretion of PROVIDER.
PROVIDER relies on e-mail as the primary means of notifying CLIENTs of important system news, problems with CLIENTs' accounts or usage of those accounts, billing problems, etc. Any notifications will be e-mailed to CLIENT domain's primary e-mail address and/or to the contact e-mail address provided by CLIENT upon application for services. CLIENT agrees to monitor these e-mail addresses on a regular basis and to respond promptly, if required, to any notifications. CLIENT agrees to notify PROVIDER of any changes to CLIENT's physical or e-mail address, telephone numbers, etc.
9. Policy Changes
These policies may change with or without notice. CLIENT agrees to comply with these policies in their current and future state. CLIENT agrees to periodically review published policies to ensure understanding of and compliance with current policies.
10. Refusal of Service
PROVIDER reserves the right to refuse or cancel service at PROVIDER's sole discretion, with or without reason, with or without warning.
CLIENT expressly understands, acknowledges, and agrees that in submitting an application and paying for any and all services to be rendered by PROVIDER, CLIENT shall abide by all Terms and Conditions stated herein.
CLIENT agrees to submit to the jurisdiction of the applicable municipal, county, state or federal court of PROVIDER's physical residence for any litigation, mediation, or arbitration that may arise from any dispute concerning any of the provisions herein. Controlling law shall be that of the State of PROVIDER's residence. The prevailing party in any litigation hereunder shall be entitled to recover its reasonable attorney's fees and court costs.
Acceptable Use Policies
13. User-supplied Content
All services may be used for lawful purposes only. Through PROVIDER's Service, CLIENT may have access to chat areas, bulletin boards, web pages, email, or other services that enable CLIENT to send or post materials (content) and make that content available to others. CLIENT must not submit, publish, or display on the Network any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, CLIENT may not submit, publish, or display any content that violates any US Federal, State, or Local law. CLIENT is solely responsible for the content made accessible through the Network. CLIENT may not use the Service to assist any other person or entity to violate any Federal, State, or Local laws, ordinances, or regulations. PROVIDER is not obligated to monitor the network to examine available content. CLIENT hereby acknowledges that if PROVIDER is made aware of content that is determined to be, in PROVIDER's sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, PROVIDER has the right, but not the obligation, to edit, remove or deny access to such content. PROVIDER may disclose any content or records concerning CLIENT's account as required to satisfy any law, regulation, governmental request or court order. Pornography and sex-related merchandising are prohibited on all servers. This includes sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to PROVIDER's servers or any other server on the Internet. Links to such materials are also prohibited. In addition, any site selling or promoting bulk e-mail service is not allowed.
14. Examples of Prohibited Services
The following content and activities may NOT be displayed or promoted by CLIENT nor associated in any way with CLIENT's account or PROVIDER's services:
- Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or local law.
- Copyrighted material used without permission.
- Material or activities judged by PROVIDER to be threatening, obscene, disparaging, or hate-related.
- Material protected by trade secret or other statute.
- Pornography, nudity, erotica, and sex-related merchandising, including sites that may infer sexual content, or link to adult content elsewhere.
- Content that promotes any illegal or prohibited activity.
- Content that may be damaging to PROVIDER's servers or to any other server on the Internet.
- Pirated software (warez).
- Hacking/Phreaking - Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
- IRC, IRC Bots, IRC BNC, etc.
- Promotion or sale of unsolicited or bulk e-mail (SPAM) software or services.
- Unsolicited or bulk e-mail or newsgroup posts (SPAM) which references and/or is traceable to PROVIDER and/or any CLIENT in any way.
- Illegally distributed MP3 media.
- Harassing, annoying, or otherwise interfering with any person's, group's, or organization's use or enjoyment of the Internet experience.
- Links or reference to any of the above.
PROVIDER shall be the sole arbiter as to what constitutes violation of this provision.
15. Copyright Infringement
It is PROVIDER's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If we remove or disable access to comply with the Digital Millennium Copyright Act, we will make a good-faith attempt to contact the owner or administrator of each affected site so that they may make a counter notification pursuant to sections 512(g)(2) and (3) of that Act.
16. Network Security
CLIENT may not use PROVIDER's Network in an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the CLIENT, logging into a server or account the CLIENT is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. CLIENT may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. PROVIDER will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
17. CGI/PERL Applications
Each account comes with its own cgi-bin. CLIENT is free to use any CGI script desired; however PROVIDER reserves the right to disable any CGI script that adversely affects normal server performance or network integrity. CGI-script sharing with domains not hosted by PROVIDER is not allowed.
18. Background Running Applications
Background daemons in general are prohibited. PROVIDER will consider requests to allow these applications on a case-by-case review basis. If allowed, extra charges will be assessed based on resources and system maintenance needed.
19. Server Resources
Any web site that uses a high amount of server resources (such as, but not limited to CPU time, memory usage, and network resources) will be given an option of either upgrading their service level or reducing the resource used to an acceptable level.
20. Internet Relay
CHAT (IRC). IRC, IRC bots, BNC, or MUDs may not be operated on PROVIDER's servers.
21. Unsolicited E-mail (SPAM)
PROVIDER's servers may not be the source, intermediary, or destination address involved in the transmission of unsolicited bulk e-mail (UBE), unsolicited commercial e-mail (UCE), spam, off-topic newsgroup posts, flames, or mail bombs. CLIENT's domain may not be referenced or traceable in any way as a result of any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of PROVIDER's network or equipment. PROVIDER reserves the right to refuse and/or cancel service to known spammers. PROVIDER reserves the sole right to determine what constitutes violation of this provision.
SPAM is any unsolicited e-mail, post, or facsimile in the newsgroup, e-mail, fax, or other electronic medium. Any unsolicited commercial email (no matter how relevant or important it may be) is spam; any unsolicited bulk email (commercial or not) is also spam. Mass and unsolicited are not concurrent conditions for spam. One and/or the other is sufficient. In the medium of newsgroups, spam is considered to be any off-topic posting and/or any identical posting to multiple newsgroups. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a request or invitation to receive messages. Any spam complaints received about CLIENT domains are addressed seriously. After investigation, if it is deemed by PROVIDER that spamming practices have indeed been utilized on PROVIDER's servers, PROVIDER reserves the right to terminate a domain account immediately with no refund and to assess a $250 penalty per spam incident. CLIENT expressly accepts PROVIDER's right to assess this penalty and agrees to its assessment and payment.
22. Server Abuse
Any attempts to undermine or cause harm to any server is strictly prohibited. This includes, but is not limited to attempting to gain access to password files other than your own, attempting to gain unauthorized access to other accounts on your server, or anything that causes server malfunction. Failure to comply is subject to immediate account deactivation without refund. Please note that while CGI/PERL scripts and/or mSQL/mySQL code can unintentionally cause server malfunction, PROVIDER will make the final determination if the code was maliciously programmed. If the code was programmed incorrectly but not out of apparently malicious intent, PROVIDER will disable the program, but not cancel CLIENT's account.
23. Traffic Overages
PROVIDER will make every reasonable effort to notify CLIENT of projected traffic overages prior to any action being taken to disable CLIENT's account. However, PROVIDER reserves the right to disable CLIENT's account without prior warning due to traffic in excess of the account allocation. In some cases, unusual traffic patterns will cause an automatic disablement of CLIENT's account without warning. Bandwidth usage is calculated weekly around midnight on Monday morning. A monthly projection is calculated at that time based upon month-to-date actual usage. If the projection exceeds the account allocation, an e-mail warning is sent to the CLIENT. If actual bandwidth usage exceeds the allocation, the account is automatically disabled; the CLIENT is notified via e-mail of the disablement, and is given the option of purchasing additional bandwidth to re-enable the account. CLIENT is not automatically charged for excess bandwidth usage without agreeing to the charges in advance. However, payment for excess bandwidth usage will be required before the account can be re-enabled.
24. Technical Support
While PROVIDER will make every reasonable effort to help CLIENTs with all of their questions, there are some times when PROVIDER must either refer CLIENT to the manual, or confess an inability to help. It is impossible for PROVIDER to support all of the countless 3rd party programs and configurations that are available to web developers and users today. In general, technical support is limited to server-side issues such as:
- Password changes
- server failure
- general account feature usage questions
- e-mail issues
- Frontpage server extension issues
- web-based control panel questions, etc.
Technical support is not provided for domain name registration issues (unless domain name registration is provided by PROVIDER), CGI scripts - preinstalled or 3rd party, web page development or programming, ISP problems, 3rd party software -- including FrontPage and other HTML Editors, mySQL database, Miva Merchant or Miva Order (support for these applications are provided by Miva Corporation directly), etc.
25. Resold Web Space
CLIENT may subdivide and give away or resell for profit web space and other services on CLIENT's account to other users. CLIENT's clients must adhere to these policies and guidelines, too. Any infraction from CLIENT domain, regardless of the source, shall be treated as a violation by the CLIENT. If an infraction is serious enough (server tampering, spam, etc.), CLIENT account can and will be cancelled without refund, without warning. It is up to the CLIENT as a reseller to monitor resold web space. PROVIDER cannot apply server space restrictions to any directory. CLIENT shall be the only point of contact for resold web space. PROVIDER will not support CLIENT's clients directly.
26. Cancellation Policy
CLIENT bears all responsibility for ensuring effective cancellation of CLIENT account. This responsibility includes providing effective and authenticated notification to PROVIDER of CLIENT's desire to cancel an account. This responsibility shall not be waived or modified by PROVIDER or CLIENT in any way at any time subsequent to the submission by CLIENT of an application for PROVIDER account. PROVIDER will act immediately to implement CLIENT's cancellation notice, providing the terms of this cancellation policy have been followed. CLIENT must provide effective notice of cancellation at least 24 hours prior to the payment due date in order to avoid charges for future hosting periods. All charges will cease immediately upon PROVIDER's receipt of notice of cancellation. No refunds shall be provided for unused services after the first 30 days of account activation, as provided under the terms of our 30-Day Satisfaction Guarantee. Accounts may be cancelled by completing the online cancellation request form. Telephone and e-mail cancellation requests are not accepted. To protect CLIENT against bogus or malicious account cancellation, cancellation requests must be authenticated by:
- Providing the original account password provided with initial account setup, and/or
- providing the first 4 and last 4 digits of the credit card number or checking account number used to pay for the account.
All cancellation requests are processed and confirmed via email by PROVIDER within 24 hours of receipt of the cancellation request. Requests for cancellations to take effect on some future date and time will not be accepted -- submission of the cancellation request form shall be assumed to be authorization for immediate account cancellation. At the time of cancellation, all services related to the account will be terminated, and all files remaining on the account will be permanently deleted from PROVIDER's servers. If CLIENT does not receive confirmation of cancellation, cancellation cannot be assumed to have been effected. It is CLIENT's responsibility to ensure that a cancellation confirmation is forthcoming from PROVIDER. The purpose of requiring confirmation of cancellation is to protect both CLIENT and PROVIDER from inaccurate claims of cancellation and notification.
If CLIENT has a balance due at the time of cancellation, this balance must be paid in full. Cancellation does not absolve CLIENT of any outstanding financial obligations. If CLIENT is taking advantage of PROVIDER's free domain registration and renewal offer, and the account has not met the minimum commitment or other requirements provided under the terms and conditions of that offer, CLIENT will be automatically charged all applicable domain registration fees at the time of cancellation. PROVIDER does not monitor account usage or the status of domain name records on PROVIDER's servers. If CLIENT transfers CLIENT domain without notifying PROVIDER of a desire to cancel the account, or if CLIENT allows domain registration to expire without renewal, CLIENT will continue to be charged/billed, even if PROVIDER learns that CLIENT domain has been transferred or expired. PROVIDER's services are independent of account usage and domain name records, and remain in effect regardless of the status of CLIENT's domain name record.
PROVIDER implements the latest technology for providing a secure and encrypted environment for information protection. There is no guarantee that the information on the Internet is absolutely secure and may never be destroyed. CLIENT agrees to indemnify and hold PROVIDER harmless in case of information loss or loss of privacy. PROVIDER is not responsible for any damages arising from CLIENT's use of or by CLIENT's inability to use the server, web hosting packages, or any other services for any reason. PROVIDER is not liable for and does not guarantee the protection or privacy of electronic mail or information transferred through the Internet or any other public network.
28. Backups and Restoral
As a courtesy, PROVIDER maintains a tape backup service on most shared hosting accounts. CLIENT can request a backup-restoral of files for a one-time charge. PROVIDER makes a good faith effort to ensure that backups are complete and accurate; however there is no guarantee of data availability or integrity. PROVIDER is not responsible for CLIENT's files. CLIENT is solely responsible for their independent backup of data stored on PROVIDER's server and network. In some cases, backups may not be available for requested accounts or files. CLIENTs are strongly advised to periodically and frequently backup data to their own local computer.
PROVIDER maintains control and ownership of any and all IP numbers and addresses that may be assigned to CLIENT and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. CLIENT shall keep the rights of ownership and use of CLIENT's domain name registration and files even if client changes providers, with the following exception: PROVIDER maintains a possessory lien on CLIENT's domain name and files from the date that associated fees are unpaid and due, including late fees or other charges, and for expenses reasonably incurred in collection of those fees. In the event of the exercise of this lien, release of CLIENT's domain name and/or files shall be at the sole discretion of PROVIDER. In case of disputes regarding authority over domain names, PROVIDER will follow industry standard practice of giving ultimate authority to the domain name registrant. PROVIDER maintains control and ownership of any copyright, proprietary and/or licensed software, scripts, programs, images, or other electronic data or media installed and/or provided by PROVIDER.
30. Billing & Payment: Automatic Credit Card or ACH Payments
Accounts that pay by credit card or electronic bank draft (ACH) are automatically billed 7 - 14 days prior to the beginning of each new hosting period. In the event that credit card payments are declined by the issuing financial institution, PROVIDER will make every reasonable effort to contact CLIENT by e-mail to request another form of payment. If PROVIDER does not receive a response to this notice, CLIENT's account will be considered past due and subject to account suspension and/or cancellation as described in the PAST DUE ACCOUNTS section below. Notifications will be sent via e-mail to the primary e-mail account of the hosted account and/or to the account contact e-mail address as provided at the time of application. CLIENT agrees to notify PROVIDER of any changes to CLIENT's physical and e-mail addresses, telephone numbers, credit card numbers, and credit card expiration dates.
31. Credit Card Expiration
CLIENT agrees to provide updated payment information upon the expiration of the credit card on file for the account. PROVIDER will notify CLIENT by e-mail when a recurring charge is declined due to an expired credit card. If no response is received, PROVIDER will adjust the expiration date to some future period and attempt the charge again. If the charge continues to fail, the account will be subject to suspension and/or cancellation, as described in the PAST DUE ACCOUNTS section below.
32. Past Due Accounts
If payment is not received by the due date, PROVIDER will send at least 1 notification via e-mail to CLIENT's primary contact e-mail address. If CLIENT does not respond to that notification, the following actions will be taken:
Account Suspension: Due Date + 14 Days
If CLIENT's account is not paid in full by the 14th day after the due date, CLIENT's account will be disabled -- all web, e-mail, FTP, and other access to the account will be non-functional. The account will be reactivated within 24 hours of the disablement, upon receipt of payment plus a $10.00 account reactivation fee.
33. Account Cancellation - Hosting Period Start Date
If payment is not received by the hosting period start date, the account will be queued for automatic cancellation and deletion.
34. Account Reactivation After Cancellation
Once an account has been placed in the cancellation queue, it must remain disabled for at least 36 hours. After 36 hours, but before 7 days, CLIENT may request reactivation of the account by paying the account balance plus a $35.00 account restoral fee. After 7 days, the account is officially cancelled and all files associated with the account are permanently removed from the servers. At this point, the account cannot be reactivated, but CLIENT can request a new account for the domain. If necessary, files may be restored from tape backups and placed on the new account within 30 days of cancellation for the normal backup restoral fee.
35. Intentional Client Revocation of Payment
If CLIENT mistakenly initiates a credit card chargeback, check stop-payment, or any other form of payment revocation, CLIENT agrees to pay a $50.00 processing fee in addition to the original payment. The intentional issuance of credit card chargebacks, check stop-payments, or any other attempt by CLIENT to revoke a payment or payments with the intention of circumventing any section of this agreement shall constitute criminal fraud. In such a case, CLIENT shall be subject to criminal penalties as well as civil penalties equal to the greater of 1) three-times actual damages, or 2) $500.
In addition to the aforementioned monetary damages, CLIENT agrees to pay PROVIDER's attorney's fees, court costs, and all other direct and incidental costs arising out of PROVIDER's efforts to enforce this clause.
36. Waiver/Modification of Policy
PROVIDER may (or may not) choose to waive or modify the enforcement of this Past Due Accounts policy if CLIENT contacts PROVIDER prior to the payment due date to discuss alternative payment methods. PROVIDER always sends at least two e-mail notifications prior to account suspension. CLIENT must respond to those notifications in order to avoid automatic implementation of the above actions.
37. No-refund Policy
Except as provided by the 30-Day Satisfaction Guarantee, all payments are non-refundable.
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