THIS AGREEMENT is made and entered between HOSTEK.COM (a service of ADVANCED ONLINE SOLUTIONS, INC.), 1648 Taylor Road #355, Port Orange, Florida 32128-6753, hereinafter referred to as "the Company" ("the Company" also includes any and all domain names owned by "the Company") and the Customer, who wishes to use the services of the Company in accordance with this Terms of Service Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. SERVICE DESCRIPTION
As a World Wide Web service provider, the Company provides dedicated server computers which are integrated into the Internet. These server computers shall send and receive information in relationship to the World Wide Web. Customer wishes to connect a web site(s) to the World Wide Web utilizing the hardware and software resources of the Company to establish an Internet web presence on one of the Company's server computers.
1a. SPAM (unsolicited email)
The Company has a strict NO SPAM policy. If you have any plans of sending out SPAM, regardless of what server/computer sends it out it, please do not continue with the order. Any account that ignores this policy and sends SPAM anyway will be terminated. Also, if this period is within the first 30 days, you will lose the 30 day money back guarantee. In other words, the account would be billed, and no refunds would be allowed. By completing this contract, you agree you will not send any SPAM related to your site from any computer.
1b. ADULT SITES
The Company does NOT host adult sites, nor sites which generally would be perceived as being of adult nature based on language, content, photos, images, including nudity of any form. If any of these occur on an account, the same account termination procedures and forfeitures apply as indicated above on line 1a. Ecommerce sites that sell adult toys are generally acceptable, provided there are no nude or partial nude images. The Company reserves the right to choose not to host such site.
1c. ILLEGAL INFORMATION
The Company does NOT host any site which contains or promotes illegal products or information of any kind. If any of these occur on an account, the same account termination procedures and forfeitures apply as indicated above on line 1a.
1d. MISCELLANEOUS CONDITIONS
Client hereby agrees that all domain names and any material submitted for publication on the Company's servers through client'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. the Company management retains the right and final opinion regarding whether any portion of a site falls within one of these categories. Client hereby agrees to indemnify and hold harmless the Company from any claim resulting from your publication of materials or your use of those materials. Violations of the Company's Terms Of Service may result in immediate account termination and the Company reserves the right to charge up to $50.00 clean-up fee.
1e. MISCELLANEOUS FEES
If the Company is required to move a domain to an alternate server due to a Client request for a service, such as ColdFusion, Client will be subject to a $9.95 Server Switch Fee. If Company registers a domain name on behalf of Client, and Client subsequently requests to host the domain with another web hosting company, in order for Company to manage the domain, Client is required to change to a "Domain Name Management" plan. The cost is $20 per year, and includes domain name renewal for one year. In this case, Company will maintain the DNS entries for the domain name. If Client does not want Company to manage the DNS, Client can choose to transfer the domain name to a registrar of their choice, and for such, there is no charge.
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.
The 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 your account is flagged for fraud, third party services like domain registrations will not be processed. The Company has no liability for the failure to provide Services for any reason (including fraud) including third party services.
1h. REFUND TYPES
On certain payment types, the 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.
In situations where a card is no longer in existence, per our Merchant Agreement we are not allowed to issue a refund to a different card. In this case, a credit would be placed on the account.
The application and this Agreement constitute a binding contract between the Company and the Customer and does not extend to any other person or entity. Cancellations after the application is received and webspace is set-up will still hold the Customer responsible for server space and the set-up fee (if any) of the web space. If the cancellation is within the first 30 days, then the customer, upon request, will be refunded the current account setup fee (if any) and any unused hosting credits which the customer was charged. Domain registration/renewal fees are not available for refunds. Additionally after the first 30 days, upon request, customer will receive a refund of any full month(s) of hosting service not used.
2b. You must be of adult age in your jurisdiction to make purchases on our 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 our site(s) or use any of the tools or services that our site(s) provides.
With respect to the service to be provided herein, the Customer ACKNOWLEDGES THAT THE Company MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. AS A RESULT, THE Customer AGREES THAT THE Company SHALL NOT BE LIABLE TO THE Customer FOR ANY CLAIMS OR DAMAGES, WHETHER DIRECT OR INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR ANY SPECIAL DAMAGES ARISING WHICH MAY BE SUFFERED BY THE Customer, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES RESULTING FROM THE LOSS OF DATA, EMAIL DATA, DELAYS, NON-DELIVERIES, SERVICE INTERRUPTIONS OR LOSS (WHETHER DIRECT OR INDIRECT) OF PROFITS, BUSINESS, REVENUE, ANTICIPATED SAVINGS, OR ANY BUSINESS INTERRUPTION.
The customer also acknowledges that by using any shopping cart system or payment gateway, whether provided by The Company or not, The 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.
3a. The Company will strive to keep its services running reliably. The Company will not be held responsible for any losses you may incur through their use. If you are a business, you should ensure that you have adequate business insurance, and we recommend you contact an insurance agent or broker. As a customer of The Company, you agree to indemnify, defend and hold harmless The Company, its officers, directors, employees, affiliates, or resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) that may arise from your use of our services. Unless specifically addressed and mutually agreed to within a service level agreement or security plan, The Company will not cover you for any losses due to hacker attacks, denial of service attacks or other criminal activities. If your business relies on your Web site for commercial purposes, it is your responsibility to ensure that you have proper business insurance coverage. If server(s) owned by the customer are colocated within our data center, it is your responsibility to ensure that you have proper business insurance coverage for your server(s). As a customer of The Company, you agree that you are responsible for any content you provide via your Web site, and it is your sole responsibility to ensure that it does not infringe upon any existing trademark or copyrighted material.
The utilization of any data or information received by the Customer from the utilization of the service to be provided by the Company is at the Customer's sole and absolute risk. the 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
If the Company shall acquire an Internet Domain Name on behalf of the Customer, then in such case the Customer hereby waives any and all claims which it may have against the 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 the Company for any reason.
Renewal obligations. You are solely responsible for ensuring that any and all domains and additional services are renewed prior to their expiration, should you so desire their renewal. You may renew your domain at any time before the expiration date. The Company shall have no liability to you or any third party in connection with the renewal, including, but not limited to, any failure or errors in renewing the services.
You may be notified at The 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, your registration will be cancelled. Payment must be made by such other method as we indicate in the renewal form. If your billing information is not accurate, you are solely responsible for the failure to renew.
Additionally, for any domain The Company registers on your behalf, or that you transfer the domain registration to The Company, you agree to be bound by the Registration Agreement.
Further, for any domain The Company registers on your behalf, or that you transfer the domain registration to The Company, you agree to be bound by the ICANN Policy.
The Company currently does not charge a setup fee. Subsequent payments are due according to the selected fee schedule following the establishment of the web space 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 the Customer fails to pay for such services in advance, the Company shall be entitled to unilaterally terminate this Agreement and discontinue the service. If the Company chooses to not terminate the service immediately, the Company still retains the option to do so at any time prior to the Customer bringing the account up to date. Further, the Customer agrees to have the account brought up to date upon providing updated payment information.
The Company's automated billing system will impose a late fee on any invoice that becomes past due. The Company may suspend services at any time after Customer fails to pay for services.
As noted above, if Customer fails to pay for services, the Company may terminate the Agreement at any time. This includes removing any data, media or other stored content from Company's infrastructure. It is the Customer's responsibility to have a local backup of such data.
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 for another term under the same conditions. The Company will not be liable for any overdraft, NSF, bank or other fees which customer may incur in association with the renewal.
If client disputes justified charges by the Company and/or Advanced Online Solutions, Inc., and/or AOS on client's credit card or PayPal, the Company has the right to charge a $25 fee (to recover the fee the Company is charged by Merchant provider or PayPal) and immediately discontinue service.
The Company reserves the right to refuse service to anyone at any time. The Company reserves the right, in its sole discretion, to deactivate your account(s) without further warning upon an indication of credit problems including delinquent payments, or if this service contract is violated, or if Client'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 behaviour from the customer.
In the unlikely event a refund is due, but customer's card is no longer valid, we are unable to issue a refund in this case, and will instead apply a credit to the account to be used for any future hosting.
No refunds will be processed for Pay by Check customers. Instead, account credit will be granted for any unused hosting, for use on future domain(s) hosting.
7. UNILATERAL SERVICE REVOCATION
In the event that the Company may at any time believe that the service is being utilized for unlawful purposes by the Customer or in contravention with the terms and provisions herewith, the Company may immediately discontinue such service to the Customer without liability.
SPAM: In the event that the 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, the Company may immediately discontinue such service to the Customer without liability.
Indirect Storage and/or Processing: the Company does not allow our 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, the Company does not allow our 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 your site, that's fine. If it's related to someone elses site, it should be on their server. For any plan which may include unlimited disk space, the aforementioned restrictions apply as well as the Company does not allow our servers to be used as a backup storage space, including email storage.
Email Services: Email accounts (POP3) are intended to be used directly by the individual/company/organization associated with the domain that we host. It is strongly recommended to use an email program like Outlook Express to retrieve the email from the POP3 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, the 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 determing the total disk space used for the account. Likewise, email traffic is considered in determining the total traffic/bandwidth used by the account.
8. MATERIAL and INDEMNIFICATION
Client hereby agrees that all domain names and any material submitted for publication on the Company's server(s) through client's account(s) will not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything libelous or harmful. Client hereby agrees to indemnify and hold harmless the 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 the Company on the grounds of such violation. Violations to the Company's Terms Of Service will result in immediate account termination and the Company reserves the right to charge up to $50.00 clean-up fee.
9. CHANGES IN TERMS OF AGREEMENT
The Company reserves the right to make changes to the terms and conditions of this Agreement. It is the Customer's responsibility to periodically review the Web Hosting Contract and Terms of Service Agreement). Utilization of the service by the Customer following the effective date of such change shall constitute acceptance by the Customer of such change(s).
10. ENTIRE AGREEMENT AND UNDERSTANDING
This instrument and the application for web space 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 Agreement.
11. GOVERNING LAW
This 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 instrument is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this instrument and the agreement which it evidences, shall remain in full force and effect.
12. CGI-SCRIPTS and/or PROGRAMS
You are free to use any CGI scripts or programs you wish, excluding IRC and other CPU intensive scripts, as long as it does not negatively affect another site on the internet, nor another site on our network, nor can it be used for anything illegal nor in violation of another company's Terms of Service. The 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 the Company's services, you agree 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 the Company finds outdated software on a shared server, you 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, your software may be automatically updated via the software providers' upgrade process. If this automated update breaks your site, Client hereby agrees to indemnify and hold harmless the Company from any claim related to such site update.
13. RESERVATION OF RIGHTS
Hostek.com 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 Hostek.com in its sole discretion. This includes, but is not limited to the following: (i) to correct mistakes made by Hostek.com, (ii) to research or assist with our 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 Hostek.com, its officers, directors, employees and agents.
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: The 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. The 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 the customer, upon the receipt of a valid civil subpoena, the Company will promptly notify the customer whose information is sought via email. Unless circumstances dictate otherwise, the Company will provide the customer an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance:
The Company will charge the person or entity submitting the civil subpoena for costs associated with complying with the subpoena.
The Company's subpoena compliance costs are as follows:
Research - $75.00/hour
Federal Express/UPS - Cost as Billed
Copies - $.50/page
14. LOG FILES:
Log files may be deleted on a periodic basis. Users are responsible for downloading their log files if user needs the log files. It is recommended that clients who wish to maintain a history of their log files download them weekly.
Email received is scanned for viruses and any email received which contains a virus may be deleted.
The Company may use a 3rd party anti-virus/malware scanning tool, such as AVG, Trend, etc., to quarantine and/or delete files which contain or match virus/malware patterns.
17. BANDWIDTH, CPU, MEMORY, DISK SPACE:
It is a violation for anyone to post information or to include programs, scripts, images on the web space provided through the Company services which consume excessive bandwidth, CPU time, memory or storage space. For most web sites this isn't even an issue. If your site(s) violate this agreement, the Company reserves the right to de-activate or terminate your site(s) service immediately. We understand sites grow, and may need more disk space. That isn't the concern here. Extremely excesssive disk space useage is not permitted.
17a. USAGE DEFINITIONS AND POLICIES
The Company offers high-limit or unlimited amounts of disk space and/or other resources, such as bandwidth transfer. The intention of the 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 sentence does not apply to VPS's as VPS customers can utilize their VPS as needed. Non Reseller Plans are for individual site owners to utilize, NOT to be utilized as a reseller plan, NOT to be utilized by a webmaster for sites he/she maintains, nor to host sites which you do not own, nor to host sites for which you are 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? The 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, the 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 the Customer's use of the service complies with these Terms.
"Unlimited" DOES NOT mean what? The Company employs complex mechanisms to protect its Customers and systems from abuse. The 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.
The 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. The 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.
The 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, the Company does place automated safeguards to protect against any one site growing too quickly and adversely impacting the system until the Company can evaluate said sites resource needs.
Unlimited Hosting Space. The Company does not set arbitrary limits on the amount of disk space a Customer can use for the Customer's website, nor does the Company charge additional fees based on an increased amount of storage used, provided the Customer's use of storage complies with these Terms. Please note, however, that the Company's service is designed to host websites. The 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. The Company does not set arbitrary limits on the amount of visitor traffic a web site can receive or on the amount of content a Customer can upload to his/her/its website in a given month, nor does the Company charge additional fees based on increased use of bandwidth, as long as the 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 the Customer can legitimately acquire. However, the Company reserves the right to limit processor time, bandwidth, or processes in cases where it is necessary to prevent negatively impacting other Customers.
18. Backup Space for Dedicated Server and VPS Customers
To keep your server backups running properly, upon using all of your backup space capacity, causing your backup to fail, you agree that we may increase your backup quota, including adjusting future invoices for the next level of backup space quota, so that your backups can continue running normally.
Additionally, for Dedicated Server and VPS Customers, the backup retention policy is 5 (five) days. If you wish to utilize a different backup policy please let us now.
The Company performs a nightly backup of all Shared, Reseller and VPS hosting accounts. These backups are retained as follows: Shared and Reseller 14 days - VPS Starter 5 days - VPS Silver 7 days - VPS Business 14 days. This backup is for data restoration in the event of a server failure. As a courtesy for Shared and Reseller customers, the 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. VPS customers are not restricted to 1 per quarter.
20. Resellers and Reseller Customers
It is the responsibility of the Reseller (Customer) of the Company to require its customer(s) to agree to a similar Terms of Service agreement that is substantiative in nature to this Terms of Service agreement, as this agreememt applies to Reseller's customers also.
21. ACCOUNT VERIFICATION and CONTINUITY
For certain support request or account changes, you will be asked to answer your 'Security Question'. By setting up a 'Security Question (with Answer)' in your Billing Control panel, you agree to allow Hostek.com representatives 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.
22. NO THIRD-PARTY BENEFICIARIES
No third-party rights or benefits exists; neither express nor implied.
23. Force Majeure
The 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 the Company.
24. You agree that this Terms of Service agreement may be modified for any reason, and without notice.