General Terms & Conditions Of Service (TOS)
These General Terms & Conditions of Service (“TOS Agreement”) are made and entered between Miss Group, Inc. d/b/a HOSTEK.COM (collectively “Company” and includes any and all domain names owned by Company), and you as “Customer” or a representative of an entity that is a Customer of Company (sometimes referred to as “you”).
As a server and application service provider, Company provides servers and other hardware/software resources that are integrated into the Internet in order to send and receive information, in addition to security assessment services, and other forms of managed technology services (the “Services”), which may be more particularly defined in current or future Statements of Work by and between Customer and Company. Customer wishes to connect one or more website(s), application(s) or other material/use, to the World Wide Web utilizing the Services provided by Company. By using the Services, Customer agrees to be bound by this TOS Agreement. If Customer does not agree to abide by the terms of this TOS Agreement, Customer is not authorized to use or access the Services.
Company and Customer agree that this TOS Agreement shall be effective during any period in which Company provides Services to Customer. By using Company services, Customer acknowledges that it has read, understands, and agrees to the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. ADDITIONAL POLICIES AND AGREEMENTS
a. Use of the Services is governed by the following agreements, policies, or guidelines, which are specifically incorporated into this TOS Agreement by reference. By using the Services, Customer also agrees to the terms of the following:
a.i. Privacy Statement
b. Additional terms may also apply to certain Services, and those agreements, policies and/or guidelines governing such are incorporated by reference herein as applicable. For example, if you request a Managed Services then the Managed Services Agreement will also apply to you and would be incorporated herein.
2. ELIGIBILITY AND RESTRICTIONS ON THE USE OF SERVICES
a. The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of, or access to the Services by anyone under the age of eighteen (18) is unauthorized, unlicensed, and in violation of these Terms of Service. Customer hereby expressly represent, warrant and confirm that Customer can form a binding contract with Company, Customer is at least eighteen (18) years old, and Customer's use of the Services is in full compliance with the law of the jurisdiction(s) to which Customer is subject, and that Customer is not prohibited from using the Services under any applicable laws.
b. In order to use the Services, Customer must have access to the Internet directly or through devices that access web-based content and pay any and all fees associated with such access.
c. In using any of the Services, Customer shall at all times comply with all laws, statutes, codes, treaties, ordinances, orders, decrees, rules, regulations and municipal by-laws, judicial, administrative, departmental or regulatory judgments, orders, decisions, rulings, awards of any governmental authority, policies, guidelines and protocols, and any other similar type of restriction, including any laws governing the protection, collection, use and disclosure of personal information or personal health information (“Laws”).
d. Customer must not, without Company’s prior written permission (including the permissions granted by this TOS Agreement): (i) log into a server or account which you are not authorized to access; (ii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) access or search, or attempt to access or search, the Services or data by any means (automated or otherwise) except through Company’s available interfaces; (iv) copy, distribute, modify, enhance, translate, reproduce, alter, tamper with, repair, sell, sublicense, rent, lease, make derivative works of, or otherwise attempt to exploit anything regarding the Services; (v) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code (except to the extent that this restriction is expressly prohibited by law) underlying the Services; (vi) modify another website so as to falsely imply that it is associated with the Services, Company or any other Company products or services; (vii) or attempt to interfere with any of the Services provided to any user, host or network.
e. Customer agrees that Customer's purchase of the Services is not contingent upon any future functionality or features, nor is it dependent on any form of oral or written comments made by Company or any of its affiliates regarding future functionality or features.
f. If Customer’s site or application receives so much traffic that it has a negative effect on other sites subject to the Services provided by Company, Customer’s high-traffic website will be subject to suspension and/or cancellation, unless other arrangements are made.
g. Customer agrees that all domain names and any material submitted for publication on Company's servers through Customer’s account(s) will not contain anything leading to an abusive or unethical use of the web hosting product(s) or the host server(s). Abusive and unethical materials and uses include, but are not limited to pornography, obscenity, nudity, violations of privacy, computer viruses, hacking, warez, and any harassing, offensive and/or harmful materials or uses. Company management retains the right and final opinion regarding whether any portion of a site falls within one of these categories. Customer hereby agrees to indemnify and hold harmless Company from any claim resulting from Customer publication of materials or Customer's use of those materials. Violations of Company's Terms & Conditions may result in immediate account termination and Company reserves the right to charge up to $50.00 clean-up fee.
h. Customer must not use the Services:
h.i. to engage in any illegal, fraudulent or unauthorized purpose, including any manner that would violate one or more Laws;
h.ii. in any way that violates or infringes the copyrights, rights of privacy or publicity, or any other rights of any person;
h.iii. to impersonate or misrepresent Customer identity or affiliation with any person or entity;
h.iv. to engage in verbal, physical, written or other abuse (including threats of abuse or retribution) of any Company customer, employee, member, or officer or any user of the Services;
h.v. to transmit or relay any form of Unsolicited Bulk email (“Spam”), which is strictly banned by Company. “Unsolicited” means that the recipient did not grant verifiable permission for the message to be sent. “Bulk” means that the message is sent as part of a larger collection of messages, all having substantively identical content. If you have the intent to produce or distribute Spam, regardless of its source, please do not continue with the order. If Customer ignores this policy and sends Spam, Customer account will be immediately terminated in the sole discretion of Company. Customer acknowledges and agrees that a violation of this provision will result in the loss of any money back guarantee. To stay within the bounds of the restrictions in this Section, Company suggests that you DO NOT: (1) purchase an email list; (2) send emails to an email list you may have already purchased; (3) send emails to anyone that has not first emailed you; (4) send emails to someone because they are a domain contact on a ICANN WHOIS search; (5) be fooled by websites that claim they are able to send Customer emails to "clean" lists, or opt-in lists, which are prohibited.
h.vi. to upload, post or submit information or materials, or otherwise make available to others using the Services: (A) any material that is libelous, defamatory, tortious, hateful, obscene, harassing or otherwise actionable or objectionable material; (B) any material that would generally be perceived as being of adult-nature based on language, content, photos, images, including nudity of any form. The same account termination procedures and forfeitures apply as indicated above in Section 2(f)(v). Ecommerce sites that sell adult toys are generally acceptable, provided there are no nude or partial nude images, however, Company reserves the right to determine such acceptance; (C) any unsolicited message or unauthorized advertising or promotional material; (D) any worms, viruses, Trojan horses, scripts, bots, bombs, spiders, or similar means, tool, programs, or algorithms to harvest, automatically download, or collect information, or any computer code or files of a destructive, damaging, disruptive, disabling or interfering nature (collectively, “Viruses”), or any information or materials that contain any of the foregoing; (E) any material that contains or promotes illegal products or information of any kind, which shall be subject to the same account termination procedures and forfeitures as indicated above; or (F) any material that is in a way that is detrimental to the operation of the Services or that could damage, disable or overburden the Services, or that is detrimental to the access or use of the Services by anyone else, which restriction applies to any use that interferes or attempts to interfere with the normal operations of the Services, including by hacking, deleting, augmenting or altering any information or materials.
a. The application and this TOS Agreement constitute a binding contract between Company and Customer and does not extend to any other person or entity. Cancellations after the application is received and services provisioned will still hold Customer responsible for server space and the set-up fee (if any) of the Service. If the cancellation is within the first 30 days, then Customer, upon request, will be refunded the current account setup fee (if any) and any unused hosting fees which Customer was charged. Domain registration/renewal fees and SSL Certificate fees are not eligible for refunds. Additionally after the first 30 (thirty) days, upon request, customer will receive a refund of any full month(s) of hosting service not used.
b. Customer must be of adult age in Customer's jurisdiction to make purchases on Company's site. Parents or guardians of minors may make purchases on behalf of their minor children/wards and are solely responsible for the direct supervision of their children/wards while their minors visit Company site(s) or use any of the tools or services that Company site(s) provides.
c. For Customer's convenience, the hosting agreement will automatically renew each billing cycle. Except for those customers in a contract period (not related to the billing cycle) greater than one month, Customer may terminate Customer's service at any time by logging into the billing system, selecting the product to cancel and completing the cancellation form. Upon termination, if Customer has pre-paid on an annual billing cycle for example, Customer will be refunded any pro-rated remaining months of service that have been unused.
4. CUSTOMER DATA, PRIVACY AND SECURITY
All content including source code, images, database(s) and other files ("Customer Data") uploaded to Customer's server space by Customer or on behalf of Customer shall be and remain the exclusive property of Customer. Company agrees to not: (a) have, acquire or assert any ownership or other proprietary right in any Customer Data; (b) use, copy or make any derivative works from, or permit any other person to use, copy or make any derivative works from, any Customer Data, except as (i) reasonably required in connection with the Services, (ii) as otherwise expressly agreed to in writing by Customer or (iii) such that is already or becomes publicly available; or (c) sell, disclose, transfer, assign, lease or otherwise commercially exploit or dispose of or grant access to any Customer Data.
Company will maintain reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification or disposal of Customer Data. It is the responsibility of Customer to keep Customer's server's services IP restricted, and code and application(s) updated to prevent unauthorized access to Customer Server or Data. Company does not monitor Customer websites for security arrangements. Company is not responsible for any security risks, unauthorized access or use, or any other harm resulting from security breaches on Customer’s website(s).
Security Suggestions for All Customers:
- Utilize 2FA for account access
- Utilize a password manager and use a very strong password not used elsewhere
- Restrict RDP access to server by IP
- Restrict MySQL or MS SQL access by IP (best to have separate database server with no public IP)
- Utilize 2FA for server access
On the expiry or termination of this TOS Agreement for whatever reason, Customer shall be allowed to download all Customer Data within 72 hours of such termination. After termination, within 30 days, Company agrees to destroy all copies of Customer Data on its systems.
The utilization of any data or information received by Customer from the utilization of the service to be provided by Company is at Customer's sole and absolute risk. Company specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services to be provided hereby.
5. DOMAIN NAME
NOTE: Domain Registrars require domain ownership information when the domain is registered or transferred to a new registrar. Therefore, customer data must be transferred to these 3rd party domain registrars. Registrars make the domain ownership information publicly available. Company strongly recommends you get the ID Protection with the domain registration/transfer so that Customer's identity is protected, which will prevent you from receiving email, text and phone spam due to domain registrations and transfers.
If Company shall acquire an Internet Domain Name on behalf of Customer, then in such case Customer hereby waives any and all claims which it may have against Company, for any loss, damage, claim or expense arising out of or in relation to the registration or renewal of such Domain Name, including but not limited to, registration in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of the providing of this service by Company for any reason.
Renewal obligations. Customer is solely responsible for ensuring that any and all domains and additional services are renewed prior to their expiration, should Customer so desire their renewal. Customer may renew Customer's domain at any time before the expiration date. Company shall have no liability to Customer or any third party in connection with the renewal, including, but not limited to, any failure or errors in renewing the services.
Customer may be notified at Company's sole discretion when renewal fees are due. Should these fees go unpaid within the time specified in a notice or reminder regarding renewal, Customer's registration will be cancelled. Payment must be made by such other method as Company indicates in the renewal form. If Customer's billing information is not accurate, Customer is solely responsible for the failure to renew.
Additionally, for any domain Company registers, transfers, renews or changes (Registrant or Contact) on Customer's behalf, Customer agrees to be bound by the following:
If a site receives so much traffic that it has a negative effect on other sites on the server, this site will be subject to suspension and/or cancellation, or other arrangements may be made.
7. NO WARRANTIES
EXCEPT AS STATED OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED HEREIN, CUSTOMER ACKNOWLEDGES THAT COMPANY MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
Customer also acknowledges that by using any shopping cart system or payment gateway, whether provided by Company or not, Company will not be held responsible for chargebacks, errors, loss of revenue, loss of data, web server failure, downtime, or any disputes that may arise from the use of any shopping cart system or payment gateway.
Unless specifically addressed and mutually agreed to within the Service Level Agreement (attached as Exhibit a.iii) or such other written and enforceable agreement between the parties, Company is not responsible for any loss, claim or damage due to hacker attacks, denial of service attacks, or other nefarious activities of third parties.
(a) PrePayment for Services
Company currently does not charge a setup fee. Subsequent payments are due according to the selected fee schedule following the establishment of the server space, resources or service on the Internet. Accounts will be billed a minimum of one (1) month in advance depending on the selected fee schedule. Subsequent payments are due on the renewal date per the selected fee schedule. In the event that Customer fails to pay for such services in advance, Company shall be entitled to unilaterally terminate this TOS Agreement and discontinue the service. If Company chooses to not terminate the service immediately, Company still retains the option to do so at any time prior to Customer bringing the account up to date. Further, Customer agrees to have the account brought up to date upon providing updated payment information.
(b) Late Payment
As previously stated, payments are due on the renewal date according to the chosen schedule. Company's automated billing system will impose a late fee (5% or $1.00, whichever is greater) on any invoice that becomes past due and Company may suspend services until Customer pays any outstanding balances.
As noted above, if Customer fails to pay for services, Company may, at any time, in its sole and absolute discretion, terminate this TOS Agreement including any and all other agreements or arrangements between Customer and Company. This includes removing any data, media or other stored content from Company's infrastructure. It is Customer's responsibility to have a local backup of such data.
(c) Automatic Renewal
Contract Renewal: All contracts are automatically renewed for another term unless proper action to cancel is completed through the client area (https://cp.hostek.com) at least two weeks in advance of the renewal date / anniversary date. E-confirmation generates to the primary e-mail address on file when valid cancellation steps are complete. If no correct notice of cancellation is given, all contracts will be automatically renewed to prevent any disruption to Customer’s services using the billing information on file for another term under the same or updated conditions. Company will not be liable for any overdraft, NSF, bank or other fees which customer may incur in association with the renewal.
Fees and costs for services listed do not include any applicable taxes imposed by any taxing authority including but not limited to sales, use, revenue, excise, or other taxes. Any applicable taxes will be added onto the statement invoice as a separate charge to be paid by Customer and are non-refundable unless expressly stated otherwise.
On certain payment types, Company will issue a credit on the account instead of a refund in the method the payment was made. Payments made via BitCoin will not be refunded via BitCoin due to the fluctuating nature of BitCoin. Instead a credit will be placed on account. This applies to any and all cryptocurrency/virtual currency.
In situations where a card is no longer in existence, per Company's Merchant Agreement, Company is not allowed to issue a refund to a different card. In this case, a credit would be placed on the account.
On payments made via check, ACH, bank draft, direct debit or similar types of payments, a credit will be placed on the account instead of a refund to bank account.
(f) Fraudulent Payments
It is a violation of this agreement to fraudulently use or misuse credit cards, electronic fund transfers, checks, or any other payment method. Company may report to law enforcement authorities, credit reporting services, and financial institutions and/or credit card companies any use Company, in its sole discretion, determines is fraudulent.
Customer has ninety (90) days to dispute any charge by Company. If Customer disputes justified charges by Company on Customer's credit card or PayPal, Company has the right to charge a $25.00 fee (to recover the fee Company is charged by Merchant provider or PayPal) and immediately discontinue service.
Company reserves the right to refuse service to anyone at any time. Company reserves the right, in its sole discretion, to deactivate Customer account(s) without further warning upon an indication of credit problems including delinquent payments, or if this service contract is violated, or if Customer's account or the traffic on this account causes any kind of network or server problem or disturbances, or because of rude, threatening or other inappropriate behavior from Customer.
9. TERMINATION AND SUSPENSION OF SERVICES
Company reserves the right, in its sole discretion, to deactivate Customer’s account(s) without further warning for violations of Company’s Terms & Conditions including but not limited to: indications of credit problems including delinquent payments, violations of service contracts, network or server disturbances/problems caused by Customer's account or the traffic on Customer’s account, or because of rude, threatening or other inappropriate behavior from the customer. Company reserves the right to charge up to $50.00 upon termination. Upon termination for any reason, Company will follow normal procedures to remove any and all data, media and other stored content from Company's infrastructure. It is Customer's responsibility to have a local backup of all data.
In the event that Company may at any time believe that the service is being utilized for unlawful purposes by Customer or in contravention with the terms and provisions herewith, Company may immediately discontinue such service to Customer without liability.
SPAM: In the event that Company determines the account to be participating in any way with SPAM, including mining of email addresses, sending unsolicited email, or any other form of SPAM, Company may immediately discontinue such service to the Customer without liability.
Indirect Storage and/or Processing: Company does not allow Company servers to be used as a storage location for download or access of files of any type (.exe, .doc, .pdf, .asp, .htm, .gif, .jpg, .mp3, etc.) that are not directly related to the account which we host. Also, Company does not allow Company servers to be used to process scripts and forms which do not directly relate to the account which we host. Basically, if it's related to Customer's site, that's fine. If it's related to someone else's site, it should be on their server. For any plan which may include unlimited disk space, the aforementioned restrictions apply as well as Company does not allow Company servers to be used as a backup storage space, including email storage.
Email Services: Email accounts are intended to be used directly by the individual, company and/or organization associated with the domain that we host. It is strongly recommended to use an email program to retrieve the email from the account and store the emails locally. Mail servers are backed up nightly, in which the backups will hold only the mail on the server at that instance, and in accordance with Item 3 above, Company shall not be liable for any loss of email data stored on the email server(s). Storage of received, sent and any other format of email is considered in determining the total disk space used for the account. Likewise, email traffic is considered in determining the total traffic/bandwidth used by the account.
10. MICROSOFT SOFTWARE
Company acts as a volume licensing provider and not responsible for any changes in the Service that cause a product that reaches end of life, requires modification or alterations, or otherwise affects the performance of the Services. Your use of the Services as permitted under this Agreement, customer agrees to not install any Microsoft products, including but not limited to, SQL Server, SharePoint or Office. Company can provide an installation for SQL which will be licensed and reported properly by Company according to Company's SPLA with Microsoft. Any use of Customer installed Microsoft product(s) is a violation of this TOS Agreement and is subject to account Suspension and/or Termination. If at any time, verification of compliance with this agreement reveals unlicensed use found on Customers services, Customer shall pay up to but not limited to 36 months of the then current price for each unpaid license. Company will presume that such unreported use began upon deployment of service, unless reasonably demonstrates a different scope and duration. You shall not resell, transfer, export or re-export any license with this agreement.
11. SUBMISSION OF MATERIALS
Customer hereby agrees that all domain names and any material submitted for publication on Company's server(s) through Customer’s account(s) will not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything that may be considered libelous or harmful to Company or any other third party.
Customer hereby agrees to indemnify and hold harmless Company for any claim resulting from the submission of illegal materials, any and all loss, cost, expense, and damages on account of any and all manner of claims, demands, actions, and proceedings that may be initiated against Company on the grounds of such violation. Any violation of this TOS Agreement will result in immediate account termination and Company reserves the right to charge up to $50.00 clean-up fee.
Customer agrees to indemnify, defend and hold harmless Company, its affiliates, and their respective officers, directors, employees, representatives, resellers and agents (each an “Indemnified Party” and, collectively “Indemnified Parties”) from and against any and all claims, losses, damages, liabilities, suits, actions, demands, proceedings (whether legal or administrative), settlement amounts, costs and expenses (including, without limitation, attorney’s fees and costs of litigation) threatened, asserted, or filed by a third party against any of the Indemnified Parties arising out of or related to (i) Customer's use of the Services; (ii) any breach or violation by Customer of this TOS Agreement; or (iii) any acts or omissions by Customer.
Customer also agrees to pay the normal hourly rate of any Indemnified Party in the event the Indemnified Party is required to be a witness in any suit, action or proceeding (whether legal or administrative) related to the Services provided under this TOS Agreement.
Where under Data Protection Law (including without limitation Article 82 of the GDPR) Company and Customer as Controller (as defined by Data Protection Law) incur joint and severally liability and, as such, Company incurs losses (other than for damage caused by processing where it has not complied with obligations under Data Protection Law specifically directed to Processors or where it has acted outside or contrary to Controller's instructions under this TOS Agreement), Controller shall indemnify Company on demand against all such Losses, except for such liability as corresponds direclty to Company's part of the responsibility for the damage caused by Company's breach of obligations of Data Protection Law or under this TOS Agreement.
With respect to any claim relating to a breach of Data Protection Law or a breach of this TOS Agreement, Company shall not in any circumstances be liable to Customer/Controller whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and
any loss or corruption (whether direct or indirect) of personal data information.
The terms of this Section will survive any termination of this TOS Agreement.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE LIABLE TO YOU OR ANY THIRD PERSON OR PARTY FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DELAY, NON-DELIVERY, INTERRUPTION OF SERVICE, OR LOSS OF PROFITS, REVENUE, SAVINGS, GOODWILL, DATA, EMAIL, BUSINESS, OR CONTRACTS. THE FOREGOING LIMITATION OF DAMAGES AND LOSSES APPLIES TO CAUSES OF ACTION OF ANY KIND, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, FROM CUSTOMER'S USE OF THE SERVICES, ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S TOTAL AGGREGATE LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT. THIS TOS AGREEMENT SUPERCEDES ANY AND ALL OTHER AGREEMENTS AS RELATED TO LIMITATION OF LIABILITY, WHETHER CREATED BEFORE OR AFTER THE DATE OF THIS TOS AGREEMENT.
If Customer’s business relies upon its website for commercial purposes, it is Customer’s responsibility to ensure that it has proper business insurance coverage. Customer agrees that it is responsible for any content that appears on its website, and it is Customer’s sole responsibility to ensure that it does not infringe upon any existing trademark or copyrighted material.
15. CHANGES IN TERMS OF TOS AGREEMENT
Company reserves the right to make changes to the terms and conditions of this TOS Agreement. It is Customer's responsibility to periodically review the TOS Agreement. Utilization of the service by Customer following the effective date of such change shall constitute acceptance by Customer of such change(s).
16. ENTIRE AGREEMENT AND UNDERSTANDING
This instrument and the application for web space and/or server resources, constitute the entire agreement between the parties, and represent the complete and entire understanding of the parties with respect to the subject matter of this TOS Agreement.
17. GOVERNING LAW
This TOS Agreement shall be governed by the laws of the State of Oklahoma in the United States of America. In the event that any term or provision of this TOS Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this TOS Agreement and the agreement which it evidences, shall remain in full force and effect.
18. GAME SERVERS, CGI-SCRIPTS and/or PROGRAMS
Company does not provide hosting for Game Servers. Company focuses on providing the best in application servers and website hosting.
Customer is free to use any CGI scripts or programs Customer wishes, excluding IRC and other CPU intensive scripts, as long as it does not negatively affect another site on the internet, nor another site on Company's network, nor can it be used for anything illegal nor in violation of another company's Terms & Conditions. Company reserves the right to disable any CGI script or script access or program or site, on an account at any time, with or without notice.
By using Company's services, Customer agrees that you will keep all software up-to-date including plugins, themes, or any other element that may be, is or may become, a security, spam, or phishing vulnerability. Common software applications that require such updates include, but are not limited to, WordPress, Joomla, Drupal, Mura, etc. In some cases, if Company finds outdated software on a shared server, Customer may be notified with a request to upgrade the software. If this request is ignored or not completed, due to the severity of these vulnerabilities, Customer's software may be automatically updated via the software providers' upgrade process. If this automated update breaks Customer's site, Customer hereby agrees to indemnify and hold harmless Company from any claim related to such site update.
19. RESERVATION OF RIGHTS
Company expressly reserves the right to cancel, terminate, suspend, or deny access to (or control of) any Account or Services (including the right to transfer or cancel any domain name registration) for any reason as determined by Company in its sole discretion. This includes, but is not limited to the following: (i) to correct mistakes made by Company, (ii) to research or assist with Company's fraud and abuse detection and prevention efforts, (iii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iv) to comply with local, state, national and international laws, rules and regulations, requests of law enforcement, including subpoena requests, and court orders (vi) to comply with any dispute resolution process, (vii) to defend any legal action (real or threatened) without consideration for whether such action is with or without merit, or (viii) to avoid any civil or criminal liability on the part of Company, its officers, directors, employees and agents.
Abuse complaints can be submitted to: [email protected]
Company screens all orders for fraud and other unethical types of practices. Services will not be activated until an initial fraud screen is completed. Additional fraud screens may be performed at any time even after service is activated. In some cases, if Customer account is flagged for fraud, third party services like domain registrations will not be processed. Company has no liability for the failure to provide Services for any reason (including not not limited to fraud) including third party services.
Company also reserves the right to access all servers hosted by Company for any reason, including but not limited to (i) updating servers or patches, (ii) updating backup software, (iii) updating virtualization drivers and (iv) tracking down suspected abuse and/or compromised servers.
Subpoena Submission by mail:
c/o Legal Dept.
1418 E 71st St, Suite Z
Tulsa, OK 74136
Or, the subpoena can be faxed to:
Attn: Legal Department
Regarding E-mail: Company is unable to provide the content of e-mail, as the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. Company's email servers do not retain deleted or sent e-mail.
Terms Related to Civil Subpoenas:
Customer Notice and Response Time
Unless specifically indicated in the subpoena to not notify Customer, upon the receipt of a valid civil subpoena, Company will promptly notify Customer whose information is sought via email. Unless circumstances dictate otherwise, Company will provide Customer an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance:
Company will charge the person or entity submitting the civil subpoena for costs associated with complying with the subpoena.
Company's subpoena compliance costs are as follows:
Research - $75.00/hour
Federal Express/UPS - Cost as Billed
Copies - $.50/page
Company makes every reasonable effort to always make sure Customer is happy. If Customer is not happy for some reason, Customer may seek help at [email protected]
21. LOG FILES
Log files may be deleted on a periodic basis. Customers on Shared Servers are responsible for downloading their log files if user needs the log files. If Customer wishes to maintain a history of Customer's log files Company recommend that Customer download them weekly.
Email received is normally scanned for viruses and any email received which contains a virus may be deleted.
Company may use a 3rd party anti-virus/malware scanning tool, such as AVG, ESET, Trend, etc., to quarantine and/or delete files which contain or match virus/malware patterns.
24. BANDWIDTH, CPU, MEMORY, DISK SPACE
It is a violation for anyone to post information or to include programs, scripts, and images on the web space provided through Company services which consume excessive bandwidth, CPU time, memory or storage space. For most web sites/applicatioins this isn't an issue. If Customer's site/application violate this TOS Agreement, Company reserves the right to de-activate or terminate Customer site(s) service immediately. Company understands sites grow, and may need more disk space. That isn't the concern here. Extremely excessive disk space usage is not permitted.
25. USAGE DEFINITIONS AND POLICIES
Company offers high-limit or unlimited amounts of disk space
and/or other resources, such as bandwidth transfer.
The intention of Company is to provide ample resources for
customer convenience, so that customers do not need to worry
about exceeding limits for their own site(s).
NOTE: The following does not apply to Virtual Servers ("VPS") as VPS customers can utilize their VPS as needed when utilized within the Terms of Service. Non Reseller Plans are for individual site owners to utilize for a singular purpose, NOT to be utilized as a reseller plan, NOT to be utilized by a webmaster for sites he/she maintains, NOT to be utilized to promote or benefit another person(s) or organization(s) outside of the accounts' singular purpose, nor to host sites which Customer does not own, nor to host sites for which Customer is not responsible for. Any such use of the Services will result in the termination of Customer's account, with or without notice.
"Unlimited" means what? Company does not set an arbitrary limit or cap on the amount of resources a single Customer can use. In good faith and subject to these Terms, Company makes every commercially reasonable effort to provide its Customers with all the storage and bandwidth resources needed to power their web sites successfully, as long as Customer's use of the service complies with these Terms.
"Unlimited" DOES NOT mean what? Company employs complex mechanisms to protect its Customers and systems from abuse. Company's offering of "unlimited" services is not intended to allow the actions of a single or few Customers to unfairly or adversely impact the experience of other Customers.
Company's Shared and Reseller services are a shared hosting service, which means that multiple Customer web sites are hosted from the same server and share server resources. Company's service is designed to meet the typical needs of personal, small business and home business website Customers. It is NOT intended to support the sustained demand of large enterprises, or non-typical applications better suited to a VPS or dedicated server. Any usage deemed by management to be outside of the normal shared hosting customer resource usage will not be allowed.
Company will make every commercially reasonable effort to provide additional resources to Customers who are using their website(s) consistent with these Terms, including moving Customers to newer and bigger shared servers as necessary. However, in order to ensure a consistent and quality experience for all Customers, Company does place automated safeguards to protect against any one site growing too quickly and adversely impacting the system until Company can evaluate said sites resource needs.
Unlimited Hosting Space. Company does not set arbitrary limits on the amount of disk space a Customer can use for Customer's website, provided Customer's use of storage complies with these Terms. Please note, however, that Company's service is designed to host websites. Company does NOT provide unlimited space for online storage, backups, or archiving of electronic files, including historical audio/video files of sermons, documents, log files, etc., and any such prohibited use of the Services will result in the termination of Customer's account, with or without notice.
Unlimited File Transfer. Company does not set arbitrary
limits on the amount of visitor traffic a web site can receive
or on the amount of content Customer can upload to his/her/its
website in a given month, as long as
Customer's use of the Services complies with these Terms. In
most cases, a Customer's web site will be able to support as
much traffic as Customer can legitimately acquire. However,
Company reserves the right to limit processor time,
bandwidth, or processes in cases where it is necessary to
prevent negatively impacting other Customers.
NOTE: Unlimited traffic is not applicable to streaming videos, streaming music or extremely high bandwidth usage sites/applications. In the very unlikely event that Customer site is utilizing an abnormally high usage of bandwidth, custom bandwidth plans can be created for Customer.
26. NIGHTLY BACKUP FOR DEDICATED SERVER AND VPS CUSTOMERS
A nightly backup is provided by default. Company strongly suggests customers opt for an offsite backup. Backups are performed using a third party tool combined with management of the backups using the third party application. Company puts forth a best effort in providing nightly or such selected backups that customer chooses; however, since this is utilizing a third party application, Company takes no responsibility regarding backups. It is the responsibility of Customer to perform their own backup.
Company performs a nightly backup of all Shared and Reseller accounts (backup option available and recommended for Virtual Server (VPS) accounts). These backups are retained as follows: Shared and Reseller web related (not including database and email) 14 days. Shared and Reseller database and email; 7 days. This backup is for data restoration in the event of a server failure. As a courtesy for Shared and Reseller customers, Company will provide one free Customer requested restore from a backup per calendar quarter. Additional Customer requested restores per calendar quarter will be subject to a $9.95 restore fee. Virtual server customers utilizing Company's Nightly Backup service as recommended are not restricted to 1 per quarter.
28. RESELLERS AND RESELLER'S CUSTOMERS
It is the responsibility of the Reseller (Customer) of Company to require its customer(s) to agree to a similar Terms of Service agreement that is sustentative in nature to this TOS Agreement, as this TOS Agreement applies to Reseller's customers also.
29. ACCOUNT VERIFICATION AND CONTINUITY
For certain support requests or account changes, Customer will be asked to answer Customer's 'Security Question'. By setting up a 'Security Question (with Answer)' in Customer's Billing Control panel, Customer agrees to allow Company representatives to use this Question/Answer as security verification for verifying the account to make the requested change(s) and/or to provide the information that is being requested.
30. MISCELLANEOUS FEES
If Company is required to move a domain to an alternate server due to a Customer request for a service, such as ColdFusion, a different version of software, etc., Customer will be subject to a $9.95 Server Switch Fee.
If Company registers a domain name on behalf of Customer, and Customer subsequently requests to host the domain with another web hosting company, in order for Company to manage the domain, Customer is required to change to a "Domain Name Management" plan. The cost is $20.00 per year, and includes domain name renewal for one year. In this case, Company will maintain the DNS entries for the domain name. If Customer does not want Company to manage the DNS, Customer can choose to transfer the domain name to a registrar of their choice, and for such, there is no charge.
31. NO THIRD-PARTY BENEFICIARIES
No third-party rights or benefits exists; neither express nor implied.
32. FORCE MAJEURE
Company shall not be liable in damages or otherwise for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of Company.
33. CONTROL PANELS
The Company provides Control Panels including cPanel and Plesk for the Linux OS and WCP/MochaPanel for the Windows OS. The purpose and benefit of the Control Panels is to simplify routine tasks and decrease common mistakes. Customers who choose not to utilize the Control Panels offered by the Company will not be provided the same level of support as Customers who utilize these Control Panels. Customers who do not utilize Company offered Control Panels are choosing to be responsible for their own server/site setup. It is strongly suggested that Customers utilize Company offered Control Panels.
34. CHANGES TO AGREEMENT OR SERVICES
Customer agrees that this TOS Agreement may be modified for any reason, and without notice. Updates to this TOS Agreement will be posted on this URL or a URL that this URL redirects to. Additionally, the Updated date will be updated to match the date the TOS Agreement was modified.
Updated January 7, 2020