|
Our
desire is to please the client. One way is to make clear our
understandings with each other.
This
Agreement (hereinafter referred to as the “Agreement” or
“Terms of Service”) is made between you, your organization
(if you are entering into this Agreement on behalf of an
organization), collectively referred to herein as
"you" or "your" (and appropriate formatives)
and Web 4 Biz, Inc., a Florida corporation doing business as
etomichosting.com (hereinafter referred to as “EtomicHosting”),
and is made effective your use of the Services. In any event,
your use of EtomicHosting’s services constitutes your
unconditional acceptance of the terms and conditions of this
Agreement. You
declare your identity (including organizational affiliation) in
the information that you provide to EtomicHosting in order to
establish your account with EtomicHosting (referred to herein as
"your Account"). It is a material part of this
Agreement that you warrant that the contact information you
provide in your Account is accurate and that you will keep it up
to date.
This
Agreement sets forth the terms and conditions of your use of
EtomicHosting web site hosting and domain name services
(“Services”) and explains EtomicHosting’s obligations to
you and your obligations EtomicHosting in relation to the
Services you purchase.
This
Agreement, as modified from time to time (the latest version of
which is available at www.etomichosting.com),
as well as any additional Etomic policies, together with all
modifications thereto, constitute the complete and exclusive
agreement between you and EtomicHosting concerning your
relationship with EtomicHosting and use and purchase of the
Services, and supersede and govern all prior proposals,
agreements, or other communications. All EtomicHosting’s
policies and agreements are incorporated herein and made part of
this Agreement by reference. By purchasing and using
EtomicHosting’s Services, you acknowledge that you have read,
understood, and agree to be bound by all terms and conditions of
this Agreement and any other policies or agreements made part of
this Agreement by reference, as well as any new, different, or
additional terms, conditions or policies which EtomicHosting
may, from time to time, establish.
1.
Modification
of this Agreement.
The
terms and conditions of this Agreement may be modified from time
to time. Modifications made to this Agreement will become
effective immediately upon posting of the revised terms on
EtomicHosting’s web site (www.etomichosting.com)
or your acknowledgment of the revised terms. If, as a result of
such a change, you no longer agree with the terms of this
Agreement, you agree that your exclusive remedy is to terminate
your service and transfer your hosting to another company or
simply request of EtomicHosting that EtomicHosting cancel your
Services. If you continue to use the Services following a change
in this Agreement and/or the Services, your continued use of the
Services indicates your consent to the changes. Any such
revision or change will be binding and effective within 10 days
of when the revised Agreement or change to the Service(s) is
posted to the website of EtomicHosting, or 10 days after you
view the revised Agreement or 10 days after notification is sent
to the e-mail address provided to EtomicHosting. You agree to
review this Agreement periodically to make yourself aware of any
such revisions.
2.
Establishment
of Account.
We
will
setup your account after we have received payment and we and/or
our payment partner(s) have screened the order(s) in case of
fraud. It is your responsibility to provide us with an email
address that is not @ the domain(s) under which you are
requesting to be signed up.
3.
Accruate
Information.
You
agree to maintain accurate information by providing updates to
EtomicHosting, as needed, while you are using EtomicHosting ’s
Services. You agree you will notify EtomicHosting within five
(5) business days when any change of the information you
provided as part of the application and/or registration process
changes. Failure by you, for whatever reason, to respond within
five (5) business days to any inquiries made by EtomicHosting to
determine the validity of information provided by you will
constitute a material breach of this Agreement. You agree that
EtomicHosting may use and rely on any such information provided
by you for all purposes in connection with your Services. If you
provide any information that is inaccurate, not current, false,
misleading or incomplete, or if EtomicHosting has reasonable
grounds to suspect that your information is inaccurate, not
current, false, misleading or incomplete, EtomicHosting has the
absolute right, in its sole discretion, to terminate its
Services and close your account.
4.
Account
Security. You
agree you are entirely responsible for maintaining the
confidentiality of you r password and account information. You
agree you are entirely responsible for any and all activities
that occur under your account. You agree to notify EtomicHosting
immediately of any unauthorized use of your account or any other
breach of security. You agree EtomicHosting will not be liable
for any loss that you may incur as a result of someone else
using your password or account, either with or without Your
knowledge. You further agree you could be held liable for losses
incurred by EtomicHosting or another party due to someone else
using your account or password. For security purposes, you
should keep account access information in a secure location and
take precautions to prevent others from gaining access to your
user name and password. You agree that you will be responsible
for all activity in Your account, whether initiated by you, or
by others on your behalf, or by any other means. EtomicHosting
specifically disclaims liability for any activity in your
account, whether authorized by you or not.
5.
Only
Lawful and Proper Use. As
a condition of your use of EtomicHosting ’s Services, you
agree not to use them for any purpose that is unlawful or
prohibited by these terms and conditions, and you agree to
comply with any applicable local, state, federal and
international laws, government rules or requirements. You agree
you will not be entitled to a refund of any fees paid to
EtomicHosting if, for any reason, EtomicHosting takes corrective
action with respect to your improper or illegal use of its
Services. EtomicHosting reserves the right at all times to
disclose any information as EtomicHosting deems necessary to
satisfy any applicable law, regulation, legal process or
governmental request, or to edit, refuse to post or to remove
any information or materials, in whole or in part, in
EtomicHosting 's sole discretion. If you have purchased
Services, EtomicHosting has no obligation to monitor your use of
the Services. EtomicHosting reserves the right to review your
use of the Services and to cancel the Services in its sole
discretion. EtomicHosting reserves the right to terminate your
access to the Services at any time, without notice, for any
reason whatsoever. EtomicHosting reserves the right to terminate
Services if your usage of the Services results in, or is the
subject of, legal action or threatened legal action, against
EtomicHosting or any of its affiliates or partners, without
consideration for whether such legal action or threatened legal
action is eventually determined to be with or without merit.
EtomicHosting may review every account for excessive space and
bandwidth utilization and to terminate or apply additional fees
to those accounts that exceed allowed levels.
6.
Content.
The
Services may
only be used for lawful purposes. This includes, but not limited
to: copyrighted material, material we judge to be threatening or
obscene, pornography. The customer agrees to indemnify and hold
harmless EtomicHosting from any claims resulting from the use of
our services. Examples
of unacceptable material include, but is not limited to:
EtomicHosting
may also cancel your use of the Services immediately, if you are
using the Services in association with spam or morally
objectionable activities. Morally objectionable activities will
include, but not be limited to: activities designed to defame,
embarrass, harm, abuse, threaten, slander, or harass third
parties; activities prohibited by the laws of the United States
and/or foreign territories in which you conduct business;
activities designed to encourage unlawful behavior by others,
such as hate crimes, terrorism, and child pornography;
activities that are tortuous, vulgar, obscene, invasive of the
privacy of a third party, racially, ethnically, or otherwise
objectionable; activities designed to impersonate the identity
of a third party; illegal access to other computers or networks
(i.e., hacking); distribution of Internet viruses or similar
destructive activities; and activities designed to harm minors
in any way. In the event EtomicHosting deletes your Services
because they are being used in association with spam or morally
objectionable activities, you will not be entitled to a refund.
7.
Zero
Tolerance Spam Policy.
EtomicHosting
takes a zero tolerance stance against sending of unsolicited
e-mail, bulk emailing, and spam. "Safe lists" and
"double optin" will be treated as spam. You agree
EtomicHosting may immediately terminate any account which it
believes, in its sole discretion, is transmitting or is
otherwise connected with any spam or other unsolicited bulk
email and will not be entitled to any refund. In addition, if
actual damages cannot be reasonably calculated then you agree to
pay EtomicHosting liquidated damages of $1 for each piece of
spam or unsolicited bulk email transmitted from or otherwise
connected with your account, otherwise you agree to pay
EtomicHosting 's actual damages.EtomicHosting
reserves the right to require changes or disable as necessary
any web site, account, database, or other component that does
not comply with this policy, at its sole discretion.
EtomicHosting also reserves the right to make any such
modifications in an emergency at our sole
discretion.EtomicHosting reserves the right to charge the holder
of the account used to send any unsolicited e-mail a clean up
fee. This cost of the clean up fee is left entirely to the
discretion of EtomicHosting. All rights reserved.
8.
Payment
Information. You
agree to supply appropriate payment for the services received
from EtomicHosting, in advance of the time period during which
such services are provided. You agree that until and unless you
notify EtomicHosting of your desire to cancel any or all
services received, those services will be billed on a recurring
basis. EtomicHosting
reserves the right to change the monthly payment amount and any
other charges at anytime.
9.
Backups
and Data Loss. Your
use of the service is at your sole risk. EtomicHosting is not
responsible for files and data residing on your account. You
agree to take full responsibility for files and data transferred
and to maintain all appropriate back up of files and data stored
on EtomicHosting servers.
10.
Cancellation
and Refunds. EtomicHosting
reserves the right to cancel the account at any time for any
reason. Customers
may cancel at any time. You
shall be entitled to a refund, prorated for the portion of the
period of Service not yet used, only if
EtomicHosting cancels this Agreement without cause.
Notwithstanding anything to the contrary in this
Agreement, you will not be entitled to a refund if you cancel
this Agreement or if EtomicHosting cancels this Agreement as a
result of your breach or violation of any of the terms of this
Agreement.
11.
Resource
Usage. Users
may not initiate the following:
(a)
Use 25% or more of system resources for longer then 90 seconds.
There are numerous activities that could cause such problems;
these include: CGI scripts, FTP, PHP, HTTP, etc.
(b)
Run any type of interactive real-time chat applications that
require server resources. Remotely-hosted services are fully
allowed.
(c)
Run stand-alone, unattended server-side processes at any point
in time on the server. This includes any and all daemons, such
as IRCD.
(d)
Run any software that interfaces with an IRC (Internet Relay
Chat) network.
(e)
Run any gaming servers such as counter-strike, half-life,
battlefield1492, etc.
12.
Bandwidth
Usage. You
are allocated a monthly bandwidth allowance. This allowance
varies depending on the hosting package you purchase. Should
your account pass the allocated amount we reserve the right to
suspend the account until the start of the next allocation,
suspend the account until more bandwidth is purchased at an
additional fee, suspend the account until you upgrade to a
higher level of package, terminate the account and/or charge you
an additional fee for the overages. Unused transfer in one month
cannot be carried over to the next month.
13.
Price
Change. We
reserve the right to change prices on EtomicHosting swervices at
any time.
14.
Indemnification.
You agree
that you shall defend, indemnify, save and hold EtomicHosting
and its contractors, agents, employees, officers, directors,
shareholders, and affiliates harmless from any and all demands,
liabilities, losses, costs, demands, expenses, or claims,
including reasonable attorney's fees, asserted against
EtomicHosting, its contractors, agents, employees, officers,
directors, shareholders, and affiliates, that may arise or
result from any service provided or performed or agreed to be
performed or any product sold by you or your agents, employees
or assigns or from any liability, expenses, claim, action,
proceeding, or demand related to your (including your agents
affiliates, or anyone using your account or services with
EtomicHosting whether or not on your behalf, and whether or not
with your consent or permission) use of the Services you
purchased from EtomicHosting or your breach of this Agreement or
any agreements or policies incorporated herein. In addition, you
agree to indemnify and hold EtomicHosting and its contractors,
agents, employees, officers, directors, shareholders, and
affiliates harmless from any loss, liability, damages or
expense, including reasonable attorneys' fees, arising out of
any breach of any representation or warranty provided herein,
any negligence or willful misconduct by you, or any allegation
that your account infringes a third person's copyright,
trademark, or proprietary or intellectual property right, or
misappropriates a third person's trade secrets. This
indemnification is in addition to any indemnification required
of you elsewhere. Should EtomicHosting be notified of a pending
law suit, or receive notice of the filing of a law suit,
EtomicHosting shall control the proceedings . You agree to
notify EtomicHosting of any such claim promptly in writing and
to allow EtomicHosting to control the proceedings. You agree to
cooperate fully with EtomicHosting during such proceedings. You
agree you will not be entitled to a refund of any fees paid to
EtomicHosting if, for any reason, EtomicHosting takes corrective
action with respect to your improper or illegal use of its
services.
15.
Disclaimer
Limitation of Liability. EtomicHosting
will not be responsible for any damages your business may
suffer. EtomicHosting disclaims any warranty or merchantability
or fitness for a particular purpose. EtomicHosting expressly
disclaims all warranties of any kind, whether express or
implied, including, but not limited to, the implied warranties
of merchantability, fitness for a particular purpose and
non-infringement for services EtomicHosting provides. Services
are provided on an "As Is" and "As
Available" basis. EtomicHosting makes no warranty that its
services will meet your requirements, or that the services will
be uninterrupted, timely, secure, or error free, or that defects
will be corrected. EtomicHosting does not warrant, nor make any
representations regarding the use, or results of, any of the
services it provides, in terms of their correctness, accuracy,
reliability, or otherwise.
Under no circumstances, including, without limitation,
negligence or other tort, principles, principles of contract,
warranty, breach of any statutory duty, principles of indemnity
or contribution, the failure of any limited or exclusive remedy
to achieve its essential purpose or otherwise, shall
EtomicHosting be liable to you for any indirect, special,
consequential, incidental or exemplary damages including,
without limitation, to damages for lost profits, loss of use,
lost of data, errors, defects, phone bills, communication lines
bills, loss of privacy, damages to third party,
and any
and all service interruptions whether or not caused by
EtomicHosting and its employees
,even if EtomicHosting has been advised of the possibility of
such damages. If the foregoing is no effective for any reason to
limit liability of EtomicHosting, then, under no circumstances,
shall EtomicHosting
be liable in an amount greater than the fees received by Etomic
for performing the specific transaction(s) that gave rise to the
liability. EtomicHosting's aggregate liability for all claims of
any sort shall not exceed the aggregate amount received by
EtomicHosting from you over the term of this Reseller Agreement.
EtomicHostingshall not be liable for any unauthorized access to,
or any corruption, erasure, theft, destruction, alteration, or
inadvertent disclosure of data, information, or content
transmitted, received, or stored on its or any 3rd party systems.
16.
Governing
Law; Venue; Waiver of Trial by Jury.
This
Agreement and any disputes regarding its interpretation and
enforcement shall be governed by the laws of the
State of
Florida
, as if this Agreement were a contract wholly entered into and
wholly performed within the State of
Florida
. Any action to enforce this Agreement or any matter relating to
your use of Etomic's or Etomic's subsidiaries' services shall be
brought exclusively in a state court in Osceola County, Florida,
or if there is no jurisdiction in such court, then in the United
States District Court in Orlando, Florida. You consent to the
exclusive personal and subject matter jurisdiction of such
courts and agree that exclusive venue therein is proper.
You agree to waive
the right to trial by jury in any proceeding that
takes place
relating to or arising out of this Agreement.
17.
Notices.
You
agree that all notices from EtomicHosting to you may be posted
on EtomicHosting’s web site. Notices concerning breach will be
sent either to the email or postal address you have on file with
EtomicHosting. In either case, delivery shall be deemed to have
been made five (5) days after the date sent.
You shall send notices to EtomicHosting either by email
or sent to the address provided on the EtomicHosting Web site.
|
