GlowHost :: Terms of Service
Home » Terms of Service
1. Introduction
This document ("The Agreement") sets forth the principles, guidelines and requirements of the Terms of Service of Glowhost.com, Inc ("The Company") governing users of the Company's of services and products ("The Customer"). These Terms of Service have been created to promote the integrity, security, reliability and privacy of Company's facilities, network, and Customer data contained within. Company shall be the sole and final arbiter to any interpretation of the following terms. The Company retains the right to modify these Terms of Service at any time, without notification, and any such modification shall be automatically effective to all customers when adopted by the Company, and published here.
By utilizing the Company's services and products, the Customer agrees to be bound by the terms herein outlined. Orders who have not indicated they have read and agree these terms of service will be denied hosting services by the Company. This verification is submitted at time of order, and the order cannot proceed until these terms have been agreed to. By utilizing our web hosting service, you agree and are bound to the following Terms until you have formally canceled your service agreement with GlowHost. For cancellations, please see the section below titled "Termination and Cancellation"
2. Compliance with the Law
We support the uncensored flow of ideas and information using the Internet as an outlet for such ideas and information. We do not actively monitor or police the sites that reside on our interactive computers. We do not monitor subscriber activity unless we believe a subscriber is abusing our servers by way of hacking, spamming, phishing, or similar illegal activities. We do not exercise editorial control over any web site, newsgroup email, or other electronic transmission of data.
Customer shall not post, transmit, retransmit or store material on or through any of the Company's interactive computers ("Servers") which, is in violation of any local, state, federal, non-United States, or International law or regulation, The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the use of the Company services, which damages the Customer, or any other party. Customer shall be responsible for determining what laws or regulations are applicable to the Customer's use of the Company's services.
3. Prohibited Uses of Services and Products
In addition to the other requirements of these Terms of Service, Customer may only use the Company's services in a manner that, in the Company's sole judgment, is consistent with the purposes of such services. If Customer is unsure of whether any contemplated use or action is permitted, please contact the Company before potentially violating your Terms of Service Agreement. By way of example, and not limitation, uses described below of the Company's services are expressly prohibited.
3.1. General
3.1.1. Unacceptable content includes MUDs, IRC Bots, Botnets, DoS and DDoS programs, Virus, Trojan Horse, Egg Drop programs or any other type of similar software used for malicious intent.
3.1.2. Usage which violates of the rights of any person or entity protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations.
3.1.3. Actions that restrict or inhibit ANY person or entity, whether a customer of Company or otherwise, in its use or enjoyment of any of the Company's services or products, or third-party services or products.
3.2. System and Network
3.2.1. Introduction of malicious programs into the Company's network or server (e.g. viruses and worms).
3.2.2. Security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access. For purposes of this Section 3.2.2, "disruption" includes, but is not limited to, port scans, pings floods, packet spoofing and forged routing information.
3.2.3. Executing any form of network monitoring which will intercept data not solely intended for the Customer.
3.2.4. Circumventing user authentication or security of any host, network or account.
3.2.5. Interfering with or denying service to any user other than Customer's host (for example, denial of service attack).
3.2.6. Using any program, script, command, or sending messages of any kind, designed to interfere with, or to disable, a user's terminal, SSH, FTP, or any other session, via any means, locally or via the Internet.
3.2.7. Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedures of the Company, including but not limited to altering, removing or in any way modifying or tampering with automatically generated log files.
3.2.8. Any action which the Company determines, in its own judgment, will reflect poorly on the Company or negatively impact its operations.
3.2.9. Any action which the Company deems to be an unacceptable use of server resources.
3.3. Special Provisions for Unlimited Shared Hosting Packages
3.3.1. Unlimited Shared Hosting Packages are not to be used as a backup service. All stored files that reside on the GlowHost server must be 100% linked content on the web site domain that resolves to a GlowHost server. In other words, unlimited packages are not meant to be used as a file hosting service, they are meant to be used as a web site hosting service. In certain cases, you may use your unlimited account as a file hosting service, but certain restrictions apply, which are outlined later in this section. Archiving of MP3, video, images or backups is prohibited on Unlimited Hosting packages. If you need these abilities we recommend that you upgrade to a suitable shared hosting service which does not have file hosting restrictions (any shared package besides unlimited), a semi-dedicated server, a dedicated server or cloud server from GlowHost.
3.3.2. Accounts that exceed 10 GB or 100,000 inodes will be removed from the backup service. We will continue to backup MySQL Databases regardless of overall account size even it account has been removed from weekly backup service.
3.3.3. Accounts that exceed 250,000 inodes will be asked to upgrade to a more suitable server such as a semi-dedicated server, cloud server or dedicated server.
3.3.4. Unlimited Accounts are allowed to send up to 100 emails per hour.
3.3.5. Unlimited Accounts do not support FFmpeg and related libraries required for server-side video-to-FLV conversion. FLV progressive streaming is allowed if you have converted the files off of the server, and have uploaded the FLV files to your account and you are embedding them in your web site's pages.
3.3.6. Unlimited Accounts may not be used for image hosting or photo gallery sites larger than 5 gigabytes and 100 gigabytes transfer per month. .
3.3.7. Unlimited Accounts may not be used for sites that offer video downloads or video hosting sites larger than 5 gigabytes and 100 gigabytes transfer per month. .
3.3.8. Unlimited Accounts may not be used for software download, file sharing or software distribution sites larger than 5 gigabytes disk space and 100 gigabytes transfer per month. Please consider a dedicated server instead.
3.3.9. Unlimited Accounts may not be used for warez, software link generator, BitTorrent, illegal software download, or DNA sites. If you are looking for a BitTorrent server, it would require a dedicated server due to the custom firewall rules which are required for hosting trackers.
3.3.10. Customers continually using excessive bandwidth may be asked to move and/or upgrade their service plan with The Company. Excess bandwidth consumption is determined by and enforced upon at the sole discretion of The Company with no prior notice being required.
3.3.11. Unlimited Account backups are generated one time per week, on Sunday. If you need higher backup frequency please choose any other package. All other packages include nightly backups.
3.3.12. InnoDB databases are not allowed on Unlimited Accounts. You may be able to run them but we do not support them and they may break from time to time if we need to perform maintenance to recover space used by InnoDB. MyISAM databases are acceptable, and in most cases you should be able to convert InnoDB to MyISAM without an issue.
3.3.13. Game sites or sites that offer downloadable games or flash games in most cases are not suitable for unlimited hosting packages and may be asked to choose a more appropriate package if their account causes a drain on any system resource like RAM, disk space or CPU. GlowHost will inform you if your site needs to be transferred to a more suitable hosting package.
4. Billing
4.1. Furnishing false or incorrect data on the hosting order form, contract or online application, including fraudulent use of credit card numbers or checking accounts will result in immediate termination and legal action will be initiated by the Company to recover any losses incurred from a user who supplies false or otherwise illegal information on the hosting application.
4.2. Attempting to circumvent or alter the processes of any billing procedures or procedures that measure time, bandwidth utilization, or other methods to document "use" of the Company's services.
4.3. All hosting is paid in advance by the Customer to the Company. There are no payment options available to receive service, and pay at the end of the payment term.
4.3. NO REFUNDS will be given outside of the terms of the currently published Money Back Guarantee.
4.4 Account upgrades incur no processing fees and can be conducted at any time by the customer.
4.5 Account downgrades on shared, reseller, and VPS hosting accounts will incur a $10.00 service fee.
4.6 All new accounts will be enrolled in automatic recurring payments beginning on the date of signup and recurring on each anniversary date of the service selected by the Customer at signup. The customer has the ability to change this preference at any time in favor of a "one time" payment model where automated recurring billing will no longer occur. This allows the Customer to complete a manual payment by logging into our web site and manually approving each new transaction. Manual payments are not recommended as there is an increased chance of late fees being applied for overdue invoices.
4.7 The customer is responsible for making payments in a timely fashion, otherwise late fees, account suspensions and terminations will apply.
4.8 A $5.00 late fee will be applied to any account more than 7 days overdue. Accounts 7 days overdue are subject to suspension of service until any overdue account has been made current by paying any and all overdue invoices.
4.9 Accounts 7 or more days overdue will be automatically suspended. Service shall be restored after a successful payment has been received by the customer. Automated service restoration generally takes 5 minutes to complete, however this process can take up to 24 hours, and a timeframe for "automatic" unsuspension is not guaranteed. It may be necessary for the Customer to contact the billing department and request unsuspension of a suspended account.
4.10 Disputed charges to your credit card issuer, also known as chargebacks, will result in immediate account suspension, regardless of fault of credit card issuer, Customer, employee or agent of the Customer. In order to restore service from disputed charges, the Customer will need to pay the full balance of the disputed charge, as well as reactivation fees, and chargeback fees. Chargeback fees are currently $39.00 for each occurrence.
5. Email Usage And Limits
5.1. Sending Unsolicited Commercial Email messages (UCE), including the sending of "junk mail" Spam or other advertising material to individuals who did not specifically request such material, who were not previous customers of Customer, or with whom Customer does not have an existing business relationship is strictly prohibited.
5.2. Forging of mail header information for malicious, illegal or spam purposes.
5.3. Use of UCE (Spam) originating from the networks of any other Internet Service Provider, on behalf of, or to advertise, any domain hosted on the Company's servers.
5.4. Usage of the Company's mail servers to send communications to email addresses that were purchased by the Customer from a 3rd party email address list provider. (Purchased Email Lists)
5.5. Customer will be charged a $500.00 penalty charge for each instance of a verifiable UCE or Spam email that is reported to the Company and faces immediate account suspension and/or termination, as well as is liable for all legal fees, including court costs and attorney fees associated with collecting the penalty listed in this section.
5.6. Operating a site that solely hosts email services for the general public by means of giving away or charging for email addresses from your domain to the general public. Giving away free or charging for email addresses is not allowed on shared or reseller hosting packages. This ensures all shared users will have adequate email service and cuts the risk arbitrary users will not abuse the email service and prevents the Company's mail service from being blocked by various SPAM enforcement agencies. Dedicated server owners may operate their own email hosting services if they so desire.
5.7. Additional hourly outbound email limits are set based on your hosting package. Please view our knowledge base for the currently allowed email limits based on your package type.
6. Customer Support
6.1. The Company promotes a mutually-professional relationship with its customers. Abusive, threatening, obscene or otherwise harassing communications with Company employees or officers, via telephone, email, online chat or other means will result in immediate account termination. As per the Terms outlined in this agreement, no refunds will be given for sites canceled due to violations of this section.
6.2. The Company does not support third party softwares like Mailman, XMB, PHPBB, Microsoft Frontpage™ or any other third party systems that we provide or you install on you own. We will try in most cases to help with general issues to get you running, but we are not responsible for any breakage that may occur as a result of using these systems.
7. Resource and Bandwidth Usage
The Company provides the limits on space and transfer in good faith to our Customers so that they may create their Web sites without the fear of running over their Web traffic and space allocation. While most Customers will use the space and traffic for their legitimate web site needs, we recognize that others may try to take advantage of our offer and use the space and traffic in ways for which it is not intended. In the best interests of our Customers and in an effort to maintain the integrity of our service, the following common sense rules will apply:
7.1. The Company does not permit shared or reseller (or reseller's resold ) accounts where more than 25% of systems total resources for more than 90 seconds, or sites which in the Company's view are detrimental to the enjoyment of the Company services by other users of the same server.
7.2. The Company does not permit shared or reseller (or reseller's resold ) accounts where cronjobs run in intervals more frequent than every 15 minutes.
7.3. If an account is found utilizing an excessive number of inodes, it will be removed from the normally scheduled backup system. No warnings will be issued that a site has been removed from the backup system. An inode is any file on the server. For example, an HTML page, an image file, an email, symlink, folder, document, et cetera. Please search our knowledge base for the current inode limit for your particular hosting package.
7.4. If an account is found utilizing in excess of 250,000 inodes for any shared or reseller (or reseller's resold ) accounts, it will be subject to suspension or an upgrade to a dedicated server may be suggested as a possibility to avoid suspension if the inode count cannot be reduced by the Customer.
7.5. Catch-All email addresses are disabled by default on our servers. You are free to use the catch-all email address however if you have it enabled, you will be expected to maintain it regularly to keep your account below the inode limits. Unmaintained catch-all email addresses are subject to automatic disablement and emails in such boxes can be permanently removed without warning. If you do not understand how to use a catch-all email address, we highly recommend keeping it disabled and use a standard email address instead.
7.6. Shared or reseller (or reseller's resold ) accounts that are in excess of 20 gigs of disk space will be removed from the regularly scheduled backups. VPS, Semi-Dedicated servers and Dedicated servers are not subject to these limitations and can backup as much data as their hosting package or hard drives will allow for.
7.7. Shared or reseller (or reseller's resold ) accounts, semi-dedicated and VPS accounts come with a monthly data transfer allowance. Should your account exceed this allowance, the account will be automatically suspended by our server monitoring software. This suspension will remain in place indefinitely until one of the following conditions has been met:
1) The transfer meter automatically resets on the first day of the month at 12:00 a.m. Service will be restored automatically at this time.
2) The Customer may upgrade to another hosting package that contains a higher transfer allowance.
7.8. Dedicated Server accounts come with a monthly data transfer allowance. Should your account exceed this allowance, the Company reserves the right to suspend the account, or the Company may elect to keep the account active and allow the account to consume more transfer than the package allows for. Any transfer consumed above and beyond the normally allowed rate will be billed to the customer at the then current rates advertised on the Company web site.
8. Termination and Cancellation
For the purposes of this section of the agreement, the term "Sixty Day Guarantee Period" shall be defined as the period extending from the date a Customer signs up his or her first domain hosting agreement with the Company through the sixtieth (60th) day following the initial signup of the first domain enrolled in hosting services by the Company.
8.1. Cancellation Notification and Termination -
A) ALL CANCELLATION REQUESTS MUST BE RECEIVED BY THE COMPANY BEFORE THE REGULARLY SCHEDULED INVOICE HAS BEEN GENERATED. NO EXCEPTIONS. The regularly scheduled invoice is defined as the invoice that is generated on the same day of the month that the Customer originally signed up for services.
B)
Cancellation requests received after the Customer's regularly scheduled invoice has been generated are PAYABLE IN FULL. The Company does not offer pro-rated services or discounts for failing to comply with the cancellation guidelines. REFUSING TO PAY OR IGNORING INVOICES THAT HAVE BEEN GENERATED DOES NOT CONSTITUTE A CUSTOMER'S WILLINGNESS TO CANCEL SERVICES. The Customer must use the automated cancellation form in order to successfully cancel services.
C)
Cancellation requests received after the Customer's account has been suspended will not be honored by our automated systems. The Customer's account must be paid in full, and in good standing for our systems to process your termination request. Failure to settle all outstanding invoices will result in inability to cancel service and invoices will continue to be generated against your account indefinitely until you have settled all outstanding invoices and the Customer has formally cancelled their account using the automated system.
D) Cancellation requests will not be accepted via phone, email, helpdesk or any other method other than using GlowHost's automated cancellation system. This system will log several important factors such as the Customer's IP address, contact details and reason for cancellation We record and archive this data for a set period of time to serve as evidence of the Customer's cancellation action.
E) FORMAL CANCELLATION POLICY - Cancellation requests will only be considered a Formal Cancellation when it has been made via the automated systems located at http://glowhost.com/login/cancel.php and must originate from the contact details of that account holder listed in the Company's customer database. The Customer is required to login to their account before filling out the cancellation form. Any other form of cancellation, via telephone, email, fax, helpdesk or any other means WILL NOT BE ACCEPTED.
F) SPECIAL RULES FOR CANCELATION MAY APPLY DEPENDING ON THE CUSTOMER'S ACCOUNT TYPE. SEE BELOW FOR MORE INFORMATION:
Shared, reseller, and semi-dedicated accounts: All cancellation requests on shared, reseller and semi-dedicated accounts must be received by the Company BEFORE the next regularly scheduled invoice has been generated. Cancellation requests received after this date will be subject to a Late Termination Fee AND regularly scheduled payment.
Cloud Servers and Managed Dedicated Servers: All cancellation requests on cloud servers and managed dedicated server hosting packages must be submitted NO LESS THAN 10 DAYS days before the next regularly scheduled invoice is due. Cancellation requests received after this date will be subject to a Late Termination Fee AND regularly scheduled payment. Dedicated servers canceled within the first 60 days of service will be billed for 3 full months of service at the regularly agreed to monthly rate. Please do not order a dedicated server if you only need it for one or two months, our machines are built to order and are very expensive to build. We may have better options available for you if you need something for the short term.
Unmanaged Dedicated Servers: All cancellation requests on unmanaged servers must be submitted for cancellation NO LESS THAN 30 DAYS before the next regularly scheduled invoice is due. Cancellation requests received after this date will be subject to a Late Termination Fee AND regularly scheduled payment. Dedicated servers canceled within the first 60 days of service will be billed for 3 full months of service at the regularly agreed to monthly rate. Please do not order a dedicated server if you only need it for one or two months, our machines are built to order and are very expensive to build. We may have better options available for you if you need something for the short term.
G) If the customer meets the guidelines above, they may use the automated system to cancel their accounts at http://glowhost.com/login/cancel.php
8.2. Late Termination -
Shared Accounts - Late Termination of a shared hosting account will incur a $25 processing fee.
Reseller and Semi-Dedicated Accounts - Late Termination of reseller, semi-dedicated and VPS accounts will incur a $75 processing fee.
Dedicated Servers and Cloud Servers: Late Termination of dedicated server and cloud server accounts will incur a processing fee of $250 or the regularly scheduled monthly payment, whichever is greater.
THE CUSTOMER CAN EASILY AVOID THE LATE TERMINATION PENALTY BY ENSURING THAT THEY HAVE PAID ALL INVOICES ON TIME AND HAVE FORMALLY CANCELLED SERVICES USING THE AUTOMATED SYSTEM AS OUTLINED IN SECTION 8.1 (F) ABOVE.
8.3. If the Customer refuses to pay their final invoice, or Late Termination fee, or any other outstanding balance, the Company will use any means possible by the Company to collect money owed to the Company by the Customer, including usage of stored Customer billing data to settle the debt, use of a 3rd party collections agency, credit reporting, legal remediation or any other method or combination deemed necessary by the Company to settle the debt.
8.4. Automatic Termination - Automatic Termination of delinquent accounts can, at the sole discretion of the company, occur if an account is found to be 7 days or more overdue. In most cases, the company will elect to suspend the Customer's account and maintain copies of the Customer's data for 90 days, ("The Data Retention Period") During this 90 day Data Retention Period, the Customer will accrue invoices for service, regardless if services have been suspended, at the agreed upon monthly rate, until the Customer has formally canceled services. Accounts that have let their Data Retention Period expire, and have not paid for their hosting services are not relinquished from debt owed to the Company. Accounts that have let their Data Retention Period expire, and have not paid for their hosting services will also be assessed the Early Termination processing fee. In addition, accounts that have let their Grace Period expire may be subject to additional fees for collection services on any outstanding debts owed to the Company. We strongly urge the customer to make sure to formally cancel their accounts as described in section 8.1 to avoid unnecessary hosting, Late Termination, collections, and other legal fees.
The Company reserves the right to Automatically Terminate this agreement or any account immediately upon the occurrence of any of the following events:
- Non payment of any charges due from Customer.
- Breach of any term or condition of this agreement by Customer.
- Commencement of any lawsuit or proceeding against Customer arising from or relating to its use of the Web site, whether or not such suit names the Company as a party or seeks any recovery from the Company.
- Commencement of any lawsuit or proceeding against Company from Customer arising from or relating to any service or activity provided by the Company.
- Slander or libel of the Company Name.
- Foul language, abuse, threats or harassment toward any of the Company's staff members, administrators or other clients.
8.5 Cancellations requested within the Sixty Day Guarantee Period are eligible for a full refund, less setup fees, domain registration fees or any other 3rd party add-on service fees which are non-refundable. Cancellations requested outside the Sixty Day Guarantee Period are not eligible for a refund in part or in full. THIS IS A SATISFACTION GUARANTEE. If customer was satisfied with the service, then any rights to the money back guarantee are waived by the customer.
8.6. Customer will not receive a refund for any other reason outside or inside of the Company's 60 day money back guarantee including but not limited to Customer "computer literacy," inability, or technical reasons outside of GlowHost's control that prevent the customer from using their web site hosting service. Contractors such as web designers or web developers who are building web sites for their own customers who are not paid by their own customers does not mean that the Company owes the developer a refund since the 3rd party agreement between developer and the developer's customer is out of the Company's control. Similarly, developers contracting service on behalf of their customer, where the developer's customer refuses to pay the developer, refuses to continue service with the developer, or has any other problems with the services that the developer renders, is not covered under our money back guarantee. Developers must ensure their contract with their customers sufficiently protects the developer from seeking a refund from the Company.
8.7. By submitting the order form on the Company web site, the Customer agrees to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees, and to be bound to all the terms of this Agreement.
8.8. Customer may, at the sole discretion of the Company, be charged a reactivation fee for each site terminated or suspended due to a billing or other Terms of Service violation or related issue.
8.9. Company reserves the right to change fees, features, and discount offerings without notice, and the Customer agrees to be bound by any changes of fee, feature, and/or discounts; any changes in price will take effect upon renewal of the existing hosting account. If the customer does not agree to the new fees, features, and discount offerings, the Customer can elect to choose another hosting provider at any time, without penalty, provided the Customer has followed the Formal Cancellation policy as outlined above.
8.10. Customer shall be responsible for all costs incurred by the Company, including but not limited to reasonable attorney's fees, court costs, and collections fees for accounts that the Company has deemed to be in default of the terms of this agreement.
8.11. Pre-paid hosting is generally offered with a discount incentive, especially when combined with coupons. If customer accepts the discount incentive and prepays for multiple months of service in advance, any pre-paid funds will not be refunded. The Company recommends that if the Customer wishes to test service of the Company, that the customer sign up for a single month service agreement, then if the Customer is satisfied with the service, the Customer should consider an upgrade to a longer term contract that offers a discount incentive.
9. Domain Names
Free Domains, and Domains purchased in advance for Customers will be bound by the items listed below.9.1 If customer has received a free domain name as part of their hosting agreement, or if the customer has paid for a domain name from the Company, and a payment reversal has occurred due to due to chargeback, returned check, stop payment, or ANY other reason, the Domain will be immediately recovered and ownership of the domain, regardless of trademark, will be surrendered to the Company and the company will become the exclusive owner of this domain name. The Company reserves the right to use this domain as a negotiation tool to obtain rightful payment. The company may elect to keep this domain name indefinitely, sell it to the trademark holder, or to any 3rd party to recover any fees owed, or the company may resell this domain for any profit that can be obtained.
9.2 Recovery of surrendered Domain names - If a Domain has been captured by the Company for non-performance of this service agreement, full payment of the late or advance hosting charges must be paid to the Company along with a minimum $100 release/transfer of ownership fee. This fee may be higher based on appraisal of a third party service selected by the Company.
9.3 The Company will not recover a Domain if a customer has decided to move to another host and canceled their hosting in accordance with the cancellation policy, and has met their minimum payment requirement listed on the Company's web site in order to receive the free Domain name. The company will never recover a Domain name that has been paid for as a separate product from the hosting service. and will never recover a domain name that was registered for free so long as the customer account is in good standing during the term of service with the company, and provided all outstanding debts have been paid to the company prior to cancellation.
9.4 If a customer has received a free domain name as part of their hosting contract, but elects to exercise their money back guarantee, the customer will receive a refund for all funds less setup fee (where applicable) and the domain registration fee of $19.95. Domain name registrations are not refundable by the registry to the Company, therefore the Domain name registration fee cannot be refunded to the Customer.
10. Indemnification of Provider/Relationship of Parties
10.1. Customer agrees to indemnify and hold the Company harmless from any lawsuit, claim, charge, or expense, including reasonable attorney fees and costs of defense, for any matter arising from or relating to Customer's web site provided hereunder.10.2. Nothing contained herein shall be deemed to create a relationship between the Company and Customer in the nature of a partnership, joint venture, editor/publisher or otherwise. Both parties acknowledge and agree that the Company has no interaction with the data or substance of Customer's Web site, except as necessary to maintain the web site's online presence.
10.3 Customer agrees to not hold responsible the Company for any data loss including web sites, email, customer databases, or otherwise, due any reason, including but not limited to server malfunction, account termination from a company employee or act of God. The company does provide a free backup service for archive purposes only, which may be useful to the Customer or the Company in the instance of such an event, however backup services are not guaranteed nor warranted that the backups will be current or usable for Customer data recovery. While the Company will make every attempt to maintain accurate and current backups, the Company cannot and does not warrant them to be fit or up to date. It is the Customers sole responsibility to maintain current backups of their data.. The Customer will be the sole party responsible for all data and is expected to carry local backups of any data installed on the Company's equipment.
10.4 Customers that utilize the optional PCI Services offered by the company agree and maintain that the Company is not liable for any damages that may occur due to compromised systems, applications, or other intrusion that results in the Customer's customer credit card data being released to the public. Customer agrees that PCI certification and or compliance is solely the responsibility of the Customer and much of becoming PCI compliant, certified compliant, and maintaining compliance is out of the direct control of the Company. Customer will hold the Company harmless from any and all lawsuit or monetary damages that result from any legal actions, loss of business, inability to process credit cards, or similar issue as a result of Customer or the Company's negligence, errors, security policies, and/or bad luck where the Customer's card holder data, or the Customer's customer card holder data was the target of an attacker. The Company makes no guarantee on ensuring the Customer's operation is PCI compliant or certified, the Company only provides a vehicle for to which the Customer can obtain PCI certification and makes a best attempt to assist the customer in maintaining a PCI compliant status. No other warrantees are expressed or implied for the Company's PCI service.
11. Confidentiality
Customer acknowledges that by reason of their relationship, both the Customer and the Company may have access to certain products, information and materials relating to the other part's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both the Company and the Customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by either party, as the case may be.
The Customer and the Company further agrees that each will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement indefinitely. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or the Company.
12. Refusal of Service
12.1. The Company reserves the right to refuse or cancel service to anyone at any time in its sole discretion without refund.
12.2. If any of these Terms of Service are failed to be followed it will result in grounds for immediate account termination..
13. Disclaimer
USE OF THE COMPANY'S SERVICES AND PRODUCTS IS AT CUSTOMER'S SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY'S SERVICES AND PRODUCTS WILL NOT BE INTERRUPTED OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS OR AS TO THE ACCURACY, OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED OR PROVIDED THROUGH THE COMPANY'S SERVICE, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSES.
THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AVERAGE AMOUNT OF ALL FEES AND CHARGES PAID TO THE COMPANY BY THE CUSTOMER. THE AVERAGE AMOUNT OF ALL FEES IS CALCULATED BY THE MONETARY TOTAL OF ALL PAYMENTS, DIVIDED BY THE NUMBER OF ALL PAYMENTS MADE BY THE CUSTOMER TO THE COMPANY.
THE COMPANY RESERVES THE RIGHT TO REVISE OR CHANGE THESE TERMS OF SERVICE AT ANY TIME WITHOUT NOTIFICATION.
THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS UNDER THE LAWS OF THE STATE OF FLORIDA, IN THE COUNTY OF MARTIN. APPLICABLE CONTRACTS ARE MADE ACCEPTED AND PERFORMED WHOLLY IN FLORIDA, IN THE COUNTY OF MARTIN WITHOUT APPLICATION TO PRINCIPLES OF CONFLICT OF LAWS, AND THE CUSTOMER AND THE COMPANY AGREE THAT THE VENUE AND JURISDICTION FOR ANY DISPUTES ARISING FROM THIS AGREEMENT SHALL BE SENT TO ARBITRATION IN THE STATE OF FLORIDA, IN THE COUNTY OF MARTIN. IF THE COMPANY IS FOUND IN FAVOR OF ANY JUDGEMENT, THE CUSTOMER IS RESPONSIBLE FOR ANY AND ALL LEGAL FEES INCURRED BY THE COMPANY.
