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Hughes Web Hosting
TERMS OF USE
(last updated July 3, 2006)
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The services that Hughes
Web Hosting (the “Company”) provides to you through our partnership
agreements are subject to this Terms of Use (“TOU”). You will
hereinafter be referred to as “Customer,” the scope of which definition
will include, without limitation, your agents, employers, and employees.
This TOU, in addition to any Order Form (as defined below) and any other
specific agreement for Company Services (as defined below) between
Customer and the Company, represents the complete understanding and
agreement between the Company and Customer. Except when expressly agreed
to the contrary in writing signed by an authorized representative of the
Company, this TOU supersedes any other agreement, whether written, oral,
by conduct, or otherwise.
THE COMPANY RESERVES THE RIGHT TO UPDATE THE TOU (INCLUDING, WITHOUT
LIMITATION, CHANGING OR DISCONTINUING ANY OF THE “COMPANY SERVICES” AS
DEFINED BELOW) AT ANY TIME WITHOUT NOTICE TO CUSTOMER. ANY SUCH CHANGE
OR DISCONTINUANCE WILL LEGALLY BIND CUSTOMER FROM THE TIME WHEN THE
COMPANY PUBLISHES AN UPDATED VERSION OF THE TOU ON THE WEB SITE. IT IS
CUSTOMER’S SOLE RESPONSIBILITY, AND IT IS NOT THE COMPANY’S
RESPONSIBILITY WHATSOEVER, TO ENSURE THAT CUSTOMER IS UP-TO-DATE ON THE
MOST CURRENT VERSION OF THE TOU.
The most current version of the TOU can be reviewed by clicking on the
“Terms of Use” hypertext link located at the bottom of the Company’s web
site (the “Web Site”) pages.
THE SUBMISSION OF CUSTOMER’S “ORDER FORM” (WHICH DEFINITION INCLUDES,
WITHOUT LIMITATION, THE COMPANY’S ONLINE ORDER FORM, HARD COPY WRITTEN
ORDER FORM, AGREEMENTS FOR COMPANY SERVICES, OR TELEPHONE ORDERS), OR
CUSTOMER’S USE OF ANY COMPANY SERVICES, WILL IMMEDIATELY AND
AUTOMATICALLY CONSTITUTE CUSTOMER’S ACCEPTANCE OF THE TOU AND WILL BIND
CUSTOMER TO THE TOU ACCORDINGLY. CUSTOMER REPRESENTS AND WARRANTS THAT
CUSTOMER HAS READ THIS TOU THOROUGHLY, HAS HAD SUFFICIENT OPPORTUNITY TO
SEEK LEGAL COUNSEL OR HAS WAIVED SUCH OPPORTUNITY, AND THEREFORE CLEARLY
UNDERSTANDS AND AGREES TO ALL THE TERMS AND CONDITIONS CONTAINED IN THIS
TOU.
Wherever in this TOU the masculine, feminine, or neuter gender is used,
it will be construed as including all genders, and wherever the singular
is used, it will be deemed to include the plural and vice versa, where
the context so requires. In each and every instance herein, the term
“including” will mean “including, but not limited to.”
The Company will provide Company Services to Customer in exchange for
fees and full compliance with the following terms and conditions:
1. PROVISION OF COMPANY SERVICES
a. Company Services Defined. “Company Services” include
the following:
(i) any act of preparing, setting up, connecting, maintaining,
terminating, or reconnecting “Customer’s Account” (which definition
includes all billing data related to Company Services and the space on
the particular Web server that the Company provides to Customer for the
purpose of providing Company Services to Customer);
(ii) any use by Customer, or any access provided to Customer by the
Company, of computing, telecommunications, software, information,
hardware, and equipment provided by the Company or third parties
affiliated with the Company;
(iii) any act, or provision of any service, by the Company to Customer
related to web hosting and domain name registrations (including server
usage and technical support), regardless of duration and whether paid
for or not;
(iv) any provision by the Company to Customer, of any space, Internet
connectivity, or electrical power;
(v) any access or use related to the Web Site, including the Web Site
itself;
(vi) any other service mentioned in the TOU;
(vii) any other service provided by the Company to Customer, whether
used or not;
(viii) any other service related to the Company that is used by
Customer, whether offered or provided by the Company to Customer.
b. Amendment of Fees & Charges. The Company may amend
the fees and/or charges for any Company Services without prior notice to
Customer.
c. Management & Backup of Data. Except where the
Company has expressly agreed in writing to the contrary, Customer is
solely and entirely responsible, and the Company is in no way
responsible, for the management and backup of all Customer data, and all
updates, upgrades, and patches to any software that Customer uses in
connection with Company Services.
d. Maintenance Windows. Customer acknowledges and
agrees to the weekly scheduled maintenance windows, which the Company
may perform at least every week. Customer understands and agrees that
during a scheduled maintenance window, any or all Company Services may
be unavailable. Customer further understands and agrees that the Company
has the right to conduct an emergency maintenance window at any time,
during which any or all Company Services may be unavailable.
e. License to Occupy Only. Customer acknowledges that
Customer has no real property interest in any equipment space provided
to Customer by the Company, and Customer agrees that any such provision
of equipment space grants Customer only a license to occupy the
equipment space. Payment by Customer for the equipment space does not
create or vest in Customer (or in any other party) any leasehold estate,
easement, ownership interest, lien, or other proprietary right or
interest of any nature in any part of the Company’s premises or
facilities including the equipment space.
f. Domain Name Registrations. Company Services related
to the registration of a domain name is limited to the submission of the
registration request to the appropriate registrar. THERE IS NO
GUARANTEE, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY SUCH GUARANTEE,
THAT A PARTICULAR APPLICATION FOR A DOMAIN NAME WILL BE ACCEPTED,
APPROVED, OR REGISTERED. Customer understands and agrees that each
individual domain name constitutes a single submission. It is Customer’s
sole responsibility to provide accurate information and to notify the
appropriate registrar directly, and NOT the Company, about any change to
the original information. For country code top-level domain names,
Customer acknowledges that the fees are non-refundable, even if the
domain name is rejected (because the fee is for the service of
submitting the application). Customer understands and acknowledges that
each individual registry or registrar may have additional domain
registration fees that Customer will have to pay.
g. Third Party Services or Products. Customer
acknowledges and agrees that any recommendation made by the Company’s
employees for services or products ancillary to Company Services are the
recommendations of that employee only and not of the Company. The
Company does not warrant the integrity or quality of the services or
products provided by such third parties. Customer agrees to hold the
Company, any third party entity related to the Company (including third
party vendors), and the Company’s executives, directors, officers,
attorneys, managers, employees, consultants, contractors, agents, parent
companies, subsidiaries, and co-subsidiaries (herein and hereinafter
meaning any company owned by the same parent company, whether partially
or wholly) harmless from and against any and all liabilities, losses,
costs, judgments, damages, claims, or causes of action, including any
and all legal fees and expenses arising out of or related to Customer’s
reliance on any recommendation made by an employee of the Company
regarding services or products ancillary to Company Services.
h. The Company’s Right of Refusal & Termination. The
Company may, at its sole discretion, refuse Company Services to any
Customer (whether potential, new, or existing) and/or terminate the
supply of Company Services to Customer immediately, with or without any
prior notice, if the Company deems Customer to be in breach of the TOU,
notwithstanding that Customer may be in breach of any other agreement by
complying with the TOU.
2. USE OF COMPANY SERVICES
a. Customer’s Account. Only Customer may use Customer’s
Account, which is defined as including all billing data related to
Customer Services and the space on the particular Web server that the
Company provides to Customer for the purpose of providing Company
Services to Customer. Customer may not transfer, sell, lease, rent, or
assign, in any way, any part or whole of Customer’s Account and/or
Company Services to any party, unless Customer obtains the Company’s
prior written consent.
b. Customer’s Password. Customer agrees to maintain a
secure password (“Customer’s Password”) to Customer’s Account, as
approved and accepted by the Company. Customer is solely responsible for
changing and maintaining Customer’s Password as required to ensure
secure access to Customer’s Account. Customer is also solely
responsible, and the Company is in no way responsible, for ensuring the
confidentiality and secrecy of Customer’s Password. If Customer forgets
or loses Customer’s Password or requires a new password, Customer agrees
to abide by all the security measures and procedures that the Company
may implement and require of Customer, including Customer’s provision to
the Company of valid identification, credit card number, or notarized
affidavit. Customer understands and agrees that if Customer does not
comply with or does not satisfy (in the Company’s sole discretion) the
Company’s security and identification verification procedures, then the
Company reserves the right to refuse any or all of Customer’s inquiries
and/or requests as they relate to Company Services and/or Customer’s
Account.
c. Ownership of Customer’s Account & Customer’s Web Site.
CUSTOMER ACKNOWLEDGES, WARRANTS, AND AGREES THAT THE LEGAL OWNER OF
CUSTOMER’S ACCOUNT WILL BE THE INDIVIDUAL, COMPANY, OR ENTITY WHOSE NAME
IS LISTED IN THE COMPANY’S DATABASE AS THE OWNER OF CUSTOMER’S ACCOUNT
(“ACCOUNT OWNER”). ONLY THE ACCOUNT OWNER MAY MAKE MODIFICATIONS,
INCLUDING CHANGE OF OWNERSHIP, TO CUSTOMER’S ACCOUNT, SUBJECT TO THE
COMPANY’S WRITTEN CONSENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT
THE LEGAL OWNER OF THE WEB SITES HOSTED UNDER CUSTOMER’S ACCOUNT WILL BE
THE ACCOUNT OWNER, EXCEPT WHERE CUSTOMER’S CUSTOMERS OWN THE WEB SITES.
CUSTOMER WILL FULLY COOPERATE WITH AND ABIDE BY ANY AND ALL OF THE
COMPANY’S SECURITY MEASURES AND PROCEDURES (INCLUDING CUSTOMER’S
PROVISION TO THE COMPANY OF VALID IDENTIFICATION, CREDIT CARD NUMBER,
AND/OR NOTARIZED AFFIDAVIT) IN THE EVENT OF ANY CONFLICT WITH REGARDS TO
THE OWNERHIP OF CUSTOMER’S ACCOUNT AND/OR WEB SITES.
d. Customer’s Lawful and Ethical Use. Customer agrees
to use the Company Services as permitted by applicable laws (including,
without limitation, local, provincial, state, and federal laws) and in a
manner that is not unethical, libelous, or contrary to public or Company
policy.
e. Customer’s Warranty, Liability, & Indemnification.
Customer acknowledges and agrees that the Company will be the sole
determinant of whether or not Customer is in breach of the TOU. Customer
is solely responsible for any legal liability arising out of, or
relating to, Customer’s use of Company Services. Customer represents,
warrants, and covenants to the Company that Customer holds the necessary
rights to use, or permit to use, any item used through any of the
Company Services, and that the use, reproduction, distribution,
transmission, or display of any data to the public, and any material to
which the public can link or access, or any aspect of Company Services
made available to the public through Customer, does NOT and will NOT:
(i) violate or potentially violate any right of any third party,
including copyrights, patents, trademarks, trade secrets, or other
proprietary rights;
(ii) constitute or potentially constitute violations, including false
advertisement, unfair competition, defamation, invasion of privacy,
invasion of rights, and discrimination;
(iii) cause or potentially cause any dispute or legal action/proceeding;
(iv) contain or potentially contain any material that is unlawful,
harmful, fraudulent, libelous, slanderous, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful, or otherwise
offensive;
(v) contain or potentially contain any material that is racially,
ethnically, disputatiously, argumentatively, or ethically objectionable;
or
(vi) contain any other material that would constitute a criminal
offense, give rise to civil liability, or otherwise violate any
applicable law (including export control laws).
Furthermore, Customer represents and warrants that Customer is not and
has not been designated a suspected terrorist as defined in Executive
Order 13224, that Customer is not a party to, associated with,
controlled by, or otherwise related in any way to any individual or
organization listed in the Annex to Executive order 13224 and all
updates thereto.
Customer agrees to indemnify and hold harmless the Company, any third
party entity related to the Company (including third party vendors), and
the Company’s executives, directors, officers, attorneys, managers,
employees, consultants, contractors, agents, parent companies,
subsidiaries, and co-subsidiaries from and against any and all
liabilities, losses, costs, judgments, damages, claims, or causes of
action, including any and all legal fees and expenses arising out of or
relating to Customer’s breach of any provision of the TOU or any other
third party claim with respect thereto.
f. Customer’s Prevention of Corruption. Customer must
actively endeavor to prevent any corruption of the Company’s systems,
including viruses. The Company reserves the right to run anti-virus
programs, at the Company’s sole discretion, to minimize potential and
actual damages.
g. Other Prohibited Conduct. Customer must not commit
or permit any reverse engineering, reverse assembling, disassembling,
reverse compiling, or decompiling, or any attempt to derive source code
from, any prototypes, hardware, software, or other tangible objects
provided to Customer by the Company.
h. Mandatory Upgrades. If the Company, in its sole
discretion, deems Customer or Customer’s Account to be adversely
affecting the Company’s server performance or network integrity, or
Customer’s Account is consuming use of bandwidth or disk space above the
allowance specified in Customer’s particular service package, then the
Company may request of Customer, and Customer must comply with such
request, to upgrade Customer’s Account to a service package that would,
in the Company’s sole discretion, adequately accommodate the use,
consumption, and other requirements of Customer’s Account and
accommodate the Company’s provision of Company Services to Customer’s
Account. Any and all downgrades of service packages are subject to the
Company’s sole approval and applicable fees.
i. Fixtures & Registration of Personal Property.
Customer acknowledges and agrees that any of the Company’s equipment,
whether or not physically affixed to any part of the Company’s premises
or facilities, will not be construed to be fixtures. For Customer’s own
equipment, Customer must register, or cause the lessor of such equipment
to register (if applicable), the equipment as Customer’s personal
property whenever required by any applicable law, and Customer agrees to
pay all taxes levied upon such equipment.
j. Other Parties’ Permission & Policies. Customer’s use
of networks, computing resources, or other services from other parties
is also subject to those parties’ respective permission and usage
policies. In the event of any conflict between the usage policies of the
other parties and the TOU, the TOU will prevail and Customer will comply
with the TOU.
k. Domain Name Registrations. Customer agrees that by
submitting to the Company an Order Form for domain name registration,
Customer represents and warrants that the information submitted therein
is true, accurate, and complete, and that any and all future changes to
this information will be provided to the appropriate registrar in a
timely manner. Customer also acknowledges and agrees that any submission
of an Order Form for domain name registration does not confer immunity
from objection to either the registration or use of the domain name.
l. Other Registry/Registrar Policies. Upon Customer’s
registration of a domain name with any registry or registrar, Customer
will also be subject to the usage policies of that registry or
registrar. In the event of any conflict between the usage policies of
the particular registry or registrar and the TOU, the TOU will prevail
and Customer will comply with the TOU.
3. CUSTOMER’S ABUSE AND BREACH
a. Customer’s Abuse Defined. Any abuse of Company
Services is a breach of the TOU ('Customer's Abuse'). Determination of
what constitutes Customer's Abuse will be at the sole discretion of the
Company. Customer's Abuse includes Customer's use of Company Services to
engage in criminal activities (including child pornography and fraud),
infringement of third party intellectual property rights, display or
communication of vulgar, offensive, defamatory, or threatening
materials, use of Company Services that disrupts the normal use of
Company Services for other customers of the Company or Customer's
customers, spawning processes, consuming excessive amounts of
memory, CPU and/or bandwidth, spamming or mass e-mailing
(whether or not it overloads a server or disrupts service to the
Company's customers), unauthorized access to or use of data, systems, or
networks (including any attempt to prove, scan or test the vulnerability
of a system or network, or to breach security or authentication measures
without express authorization of the owner of the system or network),
and interference with the Company's provisions of Company Services to
any user (including mail bombing, flooding, deliberate attempts to
overload a system, and broadcast attacks). Without limiting the scope of
the foregoing, the Company specifically forbids the storage of illegal
or pirated software, the use of any type of IRC bot and/or proxy
(including 'bnc' and 'eggdrop'), the storage or use of any type of
software intended for hacking or cracking purposes, the storage or sale
of unsolicited bulk e-mail lists intended for spamming or resale
purposes, and the forging of any TCP-IP packet header or any part of the
header information in an email or a newsgroup posting. Customer
understands, acknowledges, and agrees that Customer's Abuse is just
cause for the Company to immediately terminate this TOU
and any and all provision of Company Services to Customer.
b. Spamming. Customer understands and acknowledges that
the Company has a zero-tolerance policy against the sending of
unsolicited bulk e-mails and/or commercial messages over the Internet
(“Spam” or “Spamming”), which definition also includes maintaining an
open SMTP policy, engaging in Spamming using the services of another
Internet service provider (“ISP”) or Internet presence provider (“IPP”)
and referencing in the Spam a web site hosted on the Company’s server,
and selling or distributing software on a web site that facilitates
Spamming and resides on a server of the Company. Spamming is strictly
prohibited under the TOU and is just cause for the Company to terminate
this TOU and any and all provision of Company Services to Customer.
c. Disciplinary Measures. In the event of Customer’s
Abuse, the Company may implement, at the Company’s sole discretion, any
disciplinary measure, including warning, suspension, or termination of
Customer’s Account and all provision of Company Services to Customer. If
Customer has been suspended, and the Company chooses to repeal the
suspension, the Company may, at its sole discretion, charge Customer a
reconnection charge before the Company provides any further Company
Services to Customer. Customer acknowledges and agrees that if a
Customer’s Account has been suspended or placed on hold, the Company may
redirect visitors of the particular Customer’s web site to the Company’s
technical support web page. Customer further agrees to indemnify and
hold harmless the Company, any third party entity related to the Company
(including third party vendors), and the Company’s executives,
directors, officers, attorneys, managers, employees, consultants,
contractors, agents, parent companies, subsidiaries, and co-subsidiaries
from and against any and all liabilities, losses, costs, judgments,
damages, claims, or causes of action, including any and all legal fees
and expenses arising out of or relating to the Company placing
Customer’s Account on hold.
d. Monitoring. The Company reserves the right, and
Customer consents, to the Company monitoring Company Services and the
content on Customer’s web site(s) to determine whether or not Customer
is using Company Services in compliance with the TOU. However, Customer
understands and acknowledges that the Company does not monitor
Customer’s communications, activities, or web site content as a general
practice, and the Company expressly disclaims that it maintains any such
general practice.
e. Misclassification. Customer acknowledges that
Customer’s activity may be misclassified as Customer’s Abuse. A Customer
who believes that Customer’s activity has been misclassified may appeal
to the Company’s Technical Support Manager. Determination of whether or
not Customer’s activity is indeed Customer’s Abuse is at the Company’s
sole discretion. Customer further agrees to hold harmless the Company,
any third party entity related to the Company (including third party
vendors), and the Company’s executives, directors, officers, attorneys,
managers, employees, consultants, contractors, agents, parent companies,
subsidiaries, and co-subsidiaries from and against any and all
liabilities, losses, costs, judgments, damages, claims, or causes of
action, including any and all legal fees and expenses arising out of or
relating to the Company misclassifying Customer’s activities as
Customer’s Abuse.
f. Breach of the TOU. Customer agrees to report to the
Company any breach of the TOU by Customer, any other customer of the
Company, or anyone else using Company Services or associated with the
Company. If Customer is unsure of whether or not a particular activity
constitutes a violation of the TOU, Customer must notify the Company and
the Company may make such determination. The final determination of what
constitutes breach of the TOU will be at the Company’s sole discretion.
g. Civil &/or Criminal Liability for Breach. CUSTOMER
ACKNOWLEDGES AND AGREES THAT ANY BREACH OF THE TOU BY CUSTOMER MAY
RESULT IN CIVIL ACTION AND/OR CRIMINAL PROSECUTION.
4. TERMINATION
a. Cause for Termination. CUSTOMER UNDERSTANDS,
ACKNOWLEDGES, AND AGREES THAT IF THE COMPANY DEEMS CUSTOMER TO BE
INVOLVED, IN ANY WAY, IN ANY BREACH OF THE TOU THE COMPANY RESERVES THE
RIGHT TO IMMEDIATELY TERMINATE, WITHOUT ANY PRIOR NOTICE TO CUSTOMER,
THE TOU AND COMPANY SERVICES TO CUSTOMER. THE COMPANY WILL NOT IN ANY
WAY BE LIABLE TO CUSTOMER, AND CUSTOMER WILL MAKE NO CLAIM AGAINST THE
COMPANY, FOR TERMINATING THE TOU OR COMPANY SERVICES TO CUSTOMER AS
PROVIDED HEREIN.
b. Bankruptcy & Insolvency. In the event Customer
becomes insolvent or any bankruptcy petition is filed by Customer or any
third party against Customer, this TOU will automatically terminate and
the Company may immediately terminate Company Services to Customer
without prior notice and/or any penalty whatsoever. Customer further
consents to the grant of relief from any automatic stay of proceedings
against the Company in such event.
c. Survival. The following sections of this TOU will
survive the expiry or termination of this TOU for any reason: 3(d);
3(f); 4 to 8 inclusive; 10; 11; 15 to 20 inclusive.
5. INDEMNIFICATION
CUSTOMER AGREES TO PROTECT, DEFEND, HOLD HARMLESS, AND INDEMNIFY THE
COMPANY, ANY THIRD PARTY ENTITY RELATED TO THE COMPANY (INCLUDING THIRD
PARTY VENDORS), AND THE COMPANY’S EXECUTIVES, DIRECTORS, OFFICERS,
ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT
COMPANIES, SUBSIDIARIES, AND CO-SUBSIDIARIES FROM AND AGAINST ANY AND
ALL LIABILITIES, LOSSES, COSTS, JUDGMENTS, DAMAGES, CLAIMS, OR CAUSES OF
ACTIONS, INCLUDING ANY AND ALL LEGAL FEES AND EXPENSES, ARISING OUT OF
OR RESULTING IN ANY WAY FROM CUSTOMER’S USE OF COMPANY SERVICES.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND
UNDER NO THEORY OF LAW OR EQUITY, WILL THE COMPANY (INCLUDING THE
COMPANY’S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS,
EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES,
SUBSIDIARIES, CO-SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS,
MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING,
PRODUCING, OR DISTRIBUTING COMPANY SERVICES, BE LIABLE FOR THE LOSS OF A
DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUE DECREASE, EXPENSE
INCREASE, COST OF SUBSTITUTE PRODUCTS AND/OR COMPANY SERVICES, OR ANY
OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND – EVEN IF THE
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES – (I)
ARISING OUT OF ANY USE OF OR INABILITY TO USE ANY COMPANY SERVICES, OR
(II) RELATED TO THE COMPANY’S MIGRATION OR MOVEMENT OF ANY EQUIPMENT
BELONGING TO CUSTOMER AND/OR THE COMPANY. THE COMPANY’S TOTAL CUMULATIVE
LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL
DAMAGES, RELATED TO THE TOU OR CUSTOMER SERVICES, INCLUDING THOSE FROM
ANY NEGLIGENCE, ANY ACT OR OMISSION BY THE COMPANY OR THE COMPANY’S
REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE
LIMITED TO, AND WILL NOT EXCEED, THE SETUP FEE OR THE MONTHLY FEES PAID
BY CUSTOMER FOR COMPANY SERVICES, WHICHEVER IS GREATER.
7. DISCLAIMER
a. No Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY
SET FORTH IN THIS TOU, NO ADVICE, WHETHER WRITTEN, ORAL, OR OTHERWISE,
THAT IS GIVEN BY THE COMPANY, ITS EMPLOYEES, AGENTS, LICENSORS, OR THE
LIKE, WILL CREATE A WARRANTY AND ANY RELIANCE ON SUCH INFORMATION OR
ADVICE BY CUSTOMER WILL BE AT CUSTOMER SOLE RISK, AND THE COMPANY WILL
IN NO WAY BE LIABLE TO ANYONE FOR SUCH RELIANCE.
b. Backup of Data & Insurance. CUSTOMER ACKNOWLEDGES
AND AGREES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY, AND THAT COMPANY
IS IN NO WAY RESPONSIBLE, FOR THE BACK UP OF CUSTOMER’S DATA AND FOR THE
MAINTENANCE OF ADEQUATE INSURANCE IN RELATION TO CUSTOMER’S EQUIPMENT.
c. Changes, Modifications, Movement, & No Backup of Data.
CUSTOMER AGREES THAT THE COMPANY MAY DISCONTINUE, UPGRADE, REPLACE,
MODIFY, CHANGE, OR PHYSICALLY MOVE IN ANY WAY, WITHOUT LIMITATION, ANY
SOFTWARE, APPLICATION, PROGRAM, DATA, HARDWARE, EQUIPMENT, OR PORTIONS
OR COMPONENTS THEREOF, USED TO PROVIDE CUSTOMER WITH COMPANY SERVICES.
CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT CERTAIN CHANGES TO
COMPANY SERVICES MAY AFFECT THE OPERATION OF CUSTOMER’S PERSONALIZED
APPLICATIONS AND CONTENT. THE COMPANY MAKES NO WARRANTY OF ANY KIND,
EITHER EXPRESS OR IMPLIED, REGARDING THE PERFORMANCE, CONDITION, OR
EXISTENCE OF ANY OF CUSTOMER’S PERSONALIZED APPLICATIONS AND CONTENT.
CUSTOMER ALSO AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE, AND THE
COMPANY IS NOT RESPONSIBLE OR LIABLE IN ANY WAY, FOR ANY OF CUSTOMER’S
PERSONALIZED APPLICATIONS AND CONTENT, INCLUDING THE MANAGEMENT AND
BACKUP OF ANY AND ALL CUSTOMER DATA AND ADEQUATE INSURANCE OF CUSTOMER’S
EQUIPMENT.
d. Systems Information. THE COMPANY MAKES NO WARRANTY
OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY, ACCURACY,
OR VALIDITY OF THE DATA AND/OR INFORMATION AVAILABLE. USE OF INFORMATION
OBTAINED FROM OR THROUGH THE COMPANY IS AT THE SOLE RISK OF CUSTOMER.
e. Interconnecting Networks Information. CUSTOMER
ACKNOWLEDGES THAT THE DATA OR INFORMATION AVAILABLE THROUGH THE
INTERCONNECTING NETWORKS MAY NOT BE ACCURATE, AND THAT THE COMPANY HAS
NO ABILITY OR AUTHORITY OVER THE DATA OR INFORMATION. THE COMPANY MAKES
NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE
QUALITY, ACCURACY, OR VALIDITY OF THE DATA OR INFORMATION RESIDING ON OR
PASSING THROUGH THE INTERNCONNECTING NETWORKS. USE OF DATA OR
INFORMATION OBTAINED FROM OR THROUGH COMPANY SERVICES IS AT THE SOLE
RISK OF CUSTOMER.
f. Third Party Licenses. CUSTOMER UNDERSTANDS AND
ACKNOWLEDGES THAT THE COMPANY MAKES A REASONABLE EFFORT TO PROVIDE
CUSTOMER WITH TECHNOLOGIES, DEVELOPMENTS, AND INNOVATIONS (COLLECTIVELY
“TECHNOLOGIES”), PART OF WHICH ARE BEING LICENSED OR CO-BRANDED FROM OR
BY THIRD PARTY ENTITIES. HOWEVER, THE COMPANY MAKES NO WARRANTY OF ANY
KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY, ACCURACY,
RELIABILITY, VALIDITY, OR CONTINUED EXISTENCE OF ANY OR ALL ASPECTS OF
SUCH TECHNOLOGIES. MOREOVER, THE COMPANY SPECIFICALLY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR
SUCH TECHNOLOGIES. FURTHERMORE, CUSTOMER WILL NOT HOLD THE COMPANY, ANY
THIRD PARTY ENTITY RELATED TO THE COMPANY (INCLUDING THIRD PARTY
VENDORS), OR THE COMPANY’S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS,
MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES,
SUBSIDIARIES AND CO-SUBSIDIARIES LIABLE IN ANY WAY FOR THE REVOCATION OF
ANY LICENSE, WHICH HAS BEEN LICENSED TO THE COMPANY FROM OR BY THIRD
PARTIES, THAT RESULTS IN ANY ACTUAL OR POTENTIAL HARM, DAMAGE, COST,
EXPENSE, OR OTHERWISE TO CUSTOMER, CUSTOMER’S BUSINESS, CUSTOMER’S
AFFILIATES, CUSTOMER’S CUSTOMERS, OR ANYONE OR ANYTHING RELATED TO
CUSTOMER. THE USE OF THE TECHNOLOGIES OBTAINED FROM OR THROUGH THE
COMPANY, OR ANY OTHER REFERRED THIRD PARTY, WHETHER DIRECTLY OR
INDIRECTLY, IS AT THE SOLE RISK OF CUSTOMER.
g. Non-Company Products. REGARDING NON-COMPANY PRODUCTS
AND SERVICES, ANY MENTION THEREOF, OR ANY STATEMENT RELATED THERETO, BY
THE COMPANY, ANY THIRD PARTY ENTITY RELATED TO THE COMPANY (INCLUDING
THIRD PARTY VENDORS), OR THE COMPANY’S EXECUTIVES, DIRECTORS, OFFICERS,
ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT
COMPANIES, SUBSIDIARIES, AND/OR CO-SUBSIDIARIES IS FOR INFORMATION
PURPOSES ONLY AND DOES NOT CONSTITUTE AN ENDORSEMENT OR RECOMMENDATION
BY THE COMPANY OR THE INDIVIDUALS AND ENTITIES LISTED IN THIS SECTION.
THE COMPANY DISCLAIMS ANY AND ALL LIABILITIES FOR ANY REPRESENTATION OR
WARRANTY MADE BY THE VENDORS OF SUCH NON-COMPANY PRODUCTS OR SERVICES.
h. The Web Site. THE SERVICES, INFORMATION, AND DATA
(COLLECTIVELY THE “INFORMATION”) MADE AVAILABLE ON THE COMPANY’S WEB
SITE ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND. THE COMPANY
EXPRESSLY DISCLAIMS ANY REPRESENTATION AND WARRANTY, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE COMPANY WILL HAVE ABSOLUTELY NO LIABILITY IN CONNECTION
WITH THE INFORMATION, INCLUDING ANY LIABILITY FOR DAMAGE TO THE WEB SITE
USER’S COMPUTER, ANY HARDWARE, DATA, INFORMATION, MATERIALS, AND
BUSINESS RESULTING FROM THE INFORMATION, OR THE LACK OF INFORMATION,
AVAILABLE ON THE COMPANY’S WEB SITE. THE COMPANY WILL HAVE NO LIABILITY
FOR:
(i) ANY AND ALL LOSSES OR INJURIES CAUSED, IN WHOLE OR IN PART, BY THE
COMPANY’S ACTIONS, OMISSIONS, OR NEGLIGENCE, OR FOR CONTINGENCIES BEYOND
THE COMPANY’S CONTROL IN PROCURING, COMPILING, OR DELIVERING THE
INFORMATION;
(ii) ANY AND ALL ERRORS, OMISSIONS, OR INACCURACIES IN THE INFORMATION
REGARDLESS OF HOW CAUSED, OR DELAYS OR INTERRUPTIONS IN DELIVERY OF THE
INFORMATION; OR
(iii) ANY DECISION MADE, OR ACTION TAKEN OR NOT TAKEN, IN RELIANCE UPON
THE INFORMATION FURNISHED ON THE WEB SITE.
THE COMPANY MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY AS TO THE
CONTENT, SEQUENCE, ACCURACY, TIMELINESS, OR COMPLETENESS OF THE
INFORMATION ON THE WEB SITE, OR THAT THE INFORMATION IS RELIABLE FOR ANY
REASON. THE COMPANY MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY THAT
THE INFORMATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS
CAN BE CORRECTED. CUSTOMER WILL MAKE NO CLAIM, COMPLAINT, OR PROCEEDING
AGAINST THE COMPANY FOR ANY OR ALL PORTIONS OF THE WEB SITE THAT MAY
REQUIRE THE DOWNLOADING OF WEB SITE COOKIES FOR CUSTOMER TO ACCESS SUCH
PORTIONS OF THE WEB SITE. FOR THE PURPOSES OF THIS SECTION, “THE
COMPANY” INCLUDES THE COMPANY’S DIVISIONS, SUBSIDIARIES,
CO-SUBSIDIARIES, SUCCESSORS, PARENT COMPANIES, AND THEIR (INCLUDING THE
COMPANY’S) EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS,
EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, AFFILIATES, THIRD-PARTY
PROVIDERS, MERCHANTS, LICENSORS AND THE LIKE.
8. PAYMENT
a. Billing Cycle. The billing or invoicing of
Customer’s Account may vary depending on various factors, including the
date on which Customer becomes a customer of the Company and the
particular Company Services that the Company is providing Customer. The
Company’s provision of Company Services to Customer for one (1) month
will constitute one “Billing Cycle” which will begin on the first day,
and end on the last day, of each calendar month. The Billing Cycle will
continue to renew each month until the Company receives a “Cancellation
Request” from Customer in accordance with this TOU. The first Billing
Cycle for Customer’s Account will commence on the day that the Company
receives Customer’s Order Form. If the Company receives the Order Form
on or after the first day of a calendar month, then the Company may
pro-rate accordingly the charges and fees for that month. The Company
reserves the right to modify the Billing Cycle, at any time and without
prior notice, so that Customer may be billed or invoiced for Company
Services more or less frequently. Any period during which Customer’s
account is suspended or on hold will be included in the Billing Cycle.
b. Payment Due. Customer must ensure that the Company
receives full payment for Company Services before the beginning of each
Billing Cycle, including the initial Billing Cycle. Customer is solely
responsible for ensuring that the Company receives payment before the
applicable due date. The Company may, at its sole discretion, decide not
to provide Customer with Company Services until the Company receives
full payment in advance.
c. Methods of Payment. Methods of payment accepted by
the Company are check, money order, or credit card. If Customer is
paying by check or money order, the payment must be sent to the
Company’s address as it appears on the Web Site. The Company will charge
Customer a fifteen U.S. dollar (US$15.00) service charge for each check
that is not honored or for each credit card payment that is charged
back.
d. Overages. The Company may charge Customer for any
“Overages,” which includes excessive bandwidth and disk space use (which
is any use of bandwidth or disk space above the allowance specified in
Customer’s particular service package). Customer is solely responsible
for preventing any and all Overages on a daily basis. Customer
acknowledges and agrees that the Company has no obligation to warn
Customer about any pending or actual Overage.
e. Delinquent Customer’s Account. Customer’s Account
will be deemed “Delinquent” if the Company does not receive payment for
Company Services within five (5) days after the commencement of a
Billing Cycle.
f. Penalties for Delinquent Customer’s Account. A
Customer’s Account that is Delinquent may be put on hold and Customer
may be prevented from using Customer’s Account. Delinquent Customer’s
Account may have visitors redirected from Customer’s web site to the
Company’s technical support web page. A Delinquent Customer’s Account
that is unpaid for an entire Billing Cycle may, at the Company’s sole
discretion, have any or all files archived, purged, or otherwise
deleted. Customer’s Account will continue to accrue charges (including
interest charges) while Customer’s Account is on hold.
g. Reconnection Charge. The Company may charge
Customer, and Customer must pay, a reconnection service charge of fifty
U.S. dollars (US$50.00) to remove the hold on Customer’s Account and to
remove Customer’s Account from Delinquent status.
h. Amendments. The Company may amend the fees and/or
charges for any of the Company Services without prior notice to
Customer.
i. Applicable Taxes. The Company will charge Customer,
and Customer must pay to the Company, all applicable taxes, including
any retroactive tax on past fees or charges (whether already paid or
not) in cases where the Company is under a legal obligation to collect
such tax from Customer. Customer is solely responsible for any and all
other taxes, which Customer is under a legal obligation to pay.
9. CANCELLATION REQUESTS
a. Automatic Renewal. The TOU will bind Customer, and
Customer will be deemed to have accepted the TOU, upon the Company’s
receipt of Customer’s Order Form. The TOU, and the particular service
agreement(s) executed between Customer and the Company (if any), will
automatically renew upon expiration of the relevant Billing Cycle until
Customer makes a proper “Cancellation Request.”
b. Cancellation Request Defined. “Cancellation Request”
means Customer’s request, in accordance with this TOU, to the Company to
cease the provision of Company Services for the particular Customer’s
Account. For a valid Cancellation Request that the Company will deem
effective, Customer must make any and all Cancellation Requests
according to the following specifications:
(i) Monthly Basis. If Customer pays on a monthly basis, a Cancellation
Request must be given by writing via facsimile, first class postal
service (postage prepaid), or by prepaid overnight commercial courier
delivered to the Company’s Customer Service Department (address
available on the Web Site). Customer may also make a Cancellation
Request by telephone call to the Company’s Customer Service Department
during the hours of 8:00 a.m. PST to 5:00 p.m. PST, Monday to Friday
(excluding holidays). The Cancellation Request must be received by the
Company before 5:00 p.m. PST on the last business day of the particular
month in order for the Cancellation Request to be processed by the end
of the same month; otherwise, the Company will automatically renew
Customer’s Account for the next month or Billing Cycle. CHARGES ARE NOT
PRO-RATED WHEN CUSTOMER TERMINATES CUSTOMER’S ACCOUNT WITH THE COMPANY.
(ii) Non-Monthly Basis. If Customer pays on a non-monthly basis (three
(3), six (6), twelve (12), or other number of multiple months), a
Cancellation Request for Customer’s Account must be given by writing via
facsimile, first class postal service (postage prepaid), or by prepaid
overnight commercial courier delivered to the Company’s Customer Service
Department (address available on the Web Site). Customer may also make a
Cancellation Request by telephone call to the Company’s Customer Service
Department during the hours of 8:00 a.m. PST to 5:00 p.m. PST, Monday to
Friday (excluding holidays). The Cancellation Request must be received
by the Company before 5:00 p.m. PST, fifteen (15) days before the
anniversary date of when the Company received Customer’s Order Form for
the Cancellation Request to be processed before such anniversary date;
otherwise, the Company will automatically renew Customer’s Account, and
Customer will be bound and responsible, for the next applicable period.
CHARGES ARE NOT PRO-RATED WHEN CUSTOMER TERMINATES CUSTOMER’S ACCOUNT
WITH THE COMPANY.
c. Full Payment Requirement. Customer’s Account must be
PAID IN FULL before any Cancellation Request will be considered
effective.
d. 30-Day Money Back Guarantee. The Company will
provide Customer a thirty (30) day money back guarantee. If Customer is
not satisfied with Company Services within the first thirty (30) days of
receiving Company Services, Customer may request a refund of the fees
Customer has paid in advance. The thirty (30) day period will commence
on the earlier of the day the Company receives from Customer an Order
Form. Any and all setup fees, Overages, other charges, and domain name
registration fees are NOT refundable.
10. IP ADDRESSES
The Company maintains control and ownership of any and all IP numbers
and addresses that may be assigned to Customer, and the Company reserves
the right to change or remove, at the Company’s sole discretion, any and
all IP numbers and addresses.
11. INTELLECTUAL PROPERTY
a. Company Web Site. Customer must not, without the
Company’s express written consent, copy, reproduce, republish, or
otherwise use any material, in whole or in part, that is located on the
Web Site, including the Company’s sales and marketing materials.
b. Trademark & Copyright Prohibition. Customer must
not, without the Company’s express written consent, use any of the
Company’s trademarks, service marks, copyrighted materials, or other
intellectual property.
c. Misrepresentation. Customer must not, in any way,
misrepresent Customer’s relationship with the Company, attempt to pass
itself off as the Company, or claim that Customer is the Company.
12. CUSTOMER’S PRIVACY
Except as provided herein, the Company will keep confidential Customer’s
information or data collected as required by applicable laws. Customer
understands, acknowledges, and agrees that under urgent or emergency
circumstances, and/or as required by court order, official authority,
police or other law enforcement authority, or any applicable law or
regulation, the Company may make available Customer’s information or
data to the relevant third party. Customer further agrees that the
Company may disclose and share Customer’s information or data with the
Company’s parent companies, co-subsidiaries, and subsidiaries for
internal purposes, including uses related to Company Services,
improvements to Company Services, extending special offers to Customer,
and referral commissions. Customer understands, acknowledges, and agrees
that Customer’s administrative contact information in relation to
Customer’s domain name registration is public information and the
Company is not, and will not, be obligated to safeguard such information
and data from any third party.
13. ASSIGNMENT AND AGENTS
a. Assignment. The rights and liabilities of both
Customer and the Company (collectively “the Parties”) under the TOU will
bind and inure to the benefit of the Parties’ respective successors,
executors, and administrators, as the case may be. However, Customer may
not assign or delegate Customer’s rights or obligations under the TOU,
Order Form, or other agreement for Company Services executed between the
Parties, either in whole or in part, without the prior written consent
of the Company.
b. Bound as Principal. Customer agrees that Customer
will always be bound as a principal to the TOU even if any contract or
service agreement, including any Order Form for domain name registration
or web hosting, is executed by an agent of Customer.
14. MINIMUM AGE REQUIREMENT
a. Customer’s Warranty. Customer represents and
warrants that Customer is at least 18 years of age.
b. Parent or Guardian. Customer understands and
acknowledges that any individual under the age of 18 years (“Minor”)
must have a parent or guardian accept the TOU in order for the Minor to
become a Customer.
c. Parent or Guardian Primarily Liable. A parent or
guardian who accepts the TOU on behalf of a Minor will be primarily
liable for ensuring complete and proper compliance with the TOU,
including the timely and full payment of the charges for Company
Services.
d. Continuation of Parent or Guardian’s Liability. A
parent or guardian who accepts the TOU on behalf of a Minor will
continue to be primarily liable for the obligations mentioned in the TOU
even when the Minor has attained the age of 18, unless the parent or
guardian obtains the Company’s express written consent to the contrary.
e. Invalid Acceptance (Null & Void). ANY ACCEPTANCE OF
THE TOU BY AN INDIVIDUAL UNDER THE AGE OF 18 (MINOR) WILL BE DEEMED
INVALID AND THE TOU WILL BE DEEMED NULL AND VOID AS BETWEEN THE COMPANY
AND THE MINOR TO THE EXTENT THAT THE COMPANY WILL NOT BE HELD LIABLE IN
ANY WAY AS A RESULT OF THE MINOR’S AGE OR LEGAL INCAPACITY OR THE
MINOR’S USE OF THE COMPANY SERVICES.
15. GOVERNING LAW AND SEVERABILITY
Any agreement, including the TOU, Order Form, or other agreement for
Company Services, between the Company and Customer, will be governed by
and construed in accordance with the laws of the Province of British
Columbia, Canada without reference to its conflicts of laws principles.
Customer agrees that any litigation or arbitration between Customer and
the Company will take place in such jurisdiction, and Customer consents
to personal jurisdiction and venue in that jurisdiction. If any
provision or portion of the agreement is found by a court of competent
jurisdiction to be unenforceable for any reason, the remainder of that
agreement will continue in full force and effect.
16. FORCE MAJEURE
Customer understands, acknowledges, and agrees that the Company will not
be liable for delays in its performance of the TOU, Order Form, or other
agreement for Company Services caused by circumstances beyond the
Company’s reasonable control, including acts of God, wars, insurrection,
civil commotions, riots, national disasters, earthquakes, strikes,
fires, floods, water damage, explosions, shortages of labor or
materials, labor disputes, transportation problems, accidents,
embargoes, or governmental restrictions (collectively “Force Majeure”).
The Company will make reasonable efforts to reduce to a minimum and
mitigate the effect of any Force Majeure. Notwithstanding anything
contained elsewhere herein, lack of finances will not be considered an
event of Force Majeure nor will any event of Force Majeure suspend any
obligation of Customer for the payment of money due hereunder.
17. WAIVER, MODIFICATION, & AMENDMENT
Any waiver, modification, or amendment of any provision of the TOU,
Order Form, or other agreement for Company Services, initiated by
Customer, will be effective only if accepted in writing and signed by an
authorized representative of the Company.
18. INDEPENDENT CONTRACTORS
Nothing in this Agreement will be construed as creating a partnership or
relationship of employer and employee, principal and agent, partnership
or joint venture between the Parties. Each Party will be deemed an
independent contractor at all times and will have no right or authority
to assume or create any obligation on behalf of the other Party, except
as may be expressly provided herein.
19. CONSTRUCTION & INTERPRETATION
Wherever in this TOU the masculine, feminine, or neuter gender is used,
it will be construed as including all genders, and wherever the singular
is used, it will be deemed to include the plural and vice versa, where
the context so requires. The term “including,” wherever used in any
provision of the TOU, means “including but without limiting the
generality of any description preceding or succeeding such term.” The
division of the TOU into sections/paragraphs, and the insertion of
headings/captions, are for convenience of reference only and will not
affect the construction or interpretation of the TOU. Any rule of
construction to the effect that any ambiguity is to be resolved against
the drafting party will not be applicable in the construction or
interpretation of the TOU.
20. COMPLETE AGREEMENT & EXCLUSIVITY
The TOU, in addition to the Order Form and any other specific agreement
for Company Services between the Company and Customer, and including the
recitals contained in this TOU, constitute the complete understanding
and agreement between Customer and the Company. Except when expressly
agreed to the contrary in signed writing by an authorized representative
of the Company, the TOU supersedes any other written (including
digitized/computerized) agreement, oral agreement, and/or agreement by
conduct. This TOU, the Order Form, or any other specific agreement for
Company Services between the Company and Customer will each be
exclusively between the Company and Customer only and will not confer
any rights in any third party except as otherwise expressly provided in
the TOU.
21. INDEPENDENT LEGAL ADVICE
Customer represents and warrants that Customer has read this TOU
thoroughly, has had sufficient opportunity to seek legal counsel or has
waived such opportunity, and therefore clearly understands and agrees to
all the terms and conditions contained in this TOU. |
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