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HOSTING SERVICES TERMS AND CONDITIONS – Last Revised: 08/24/2011
The use of services provided by Certified Hosting Solutions [hereafter referred to as “Certified Hosting”] is subject to the following Terms and Conditions.
Party Definitions and Introductory Terms ‐ The operative parties referred to in this Agreement are defined as follows:
1. Certified Hosting is the publisher and operator of www.certifiedhosting.com (the “Site”) whereby Certified Hosting makes certain web hosting services (the “Services”) available.
When first‐person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Certified Hosting. Additionally, when the terms “the Site” or “Site” are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
2. You, the Client ‐ As Our Client and the user of the Site or Services, this Agreement will refer to You through any second‐person pronouns, such as “Your,” “Yours,” etc.
PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO CERTIFIED HOSTING’S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the “AGREEMENT”). IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I ACCEPT,” OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET‐UP PROCESS. YOU SHOULD PRINT‐OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “BACK” BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO CERTIFIED HOSTING’S SERVICES. CERTIFIED HOSTING AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY USE OF CERTIFIED HOSTING’S SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT HOSTING SERVICES TERMS AND CONDITIONS.
1.1 At the time of initial registration, You will select from the list of available services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by Certified Hosting. Your subscription to the Services will be deemed accepted by Certified Hosting when Certified Hosting delivers a confirmation of the subscription to You. Certified Hosting reserves the right to refuse to provide You with any Service for any reason. Certified Hosting also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then‐current fees for such additional services. All additional services shall be considered “Services” hereunder. All Services provided are subject to the terms and conditions of this Agreement.
1.2 For purposes of this Agreement, the following categories of Services are applicable:
2. REVISIONS TO USER AGREEMENT
This Agreement contains the complete and entire terms and conditions that apply to Your use of Certified Hosting’s Services (as defined below). Certified Hosting may modify the terms of this Agreement, including the Fees (as defined below) at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
2.2 We agree that if We change anything in this Agreement, We will change the “last modified” date at the top of this Agreement. You agree to periodically re‐visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the “last modified” date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
2.5 Incorporations by reference – Although this Agreement represents the primary terms and conditions of service for Certified Hosting’s Services, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
3. DURATION OF AGREEMENT AND CANCELLATION POLICY/REFUNDS
3.1 The Initial Term shall begin upon the date that You receive Your account login information from Us. The term’s length is chosen by You and shall be indicated when You order Our Services. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
3.2 This Agreement may be terminated by either party any time prior to the billing period ending cycle, (Clients must use the Cancellation Request Form found at (http://certifiedhosting.com/myaccount), or by Certified Hosting in the event of nonpayment or violation of terms of service by You at any time, without notice, if in Certified Hosting’s sole judgment You have in any way breached this Agreement (“Termination for Cause”).
3.3 Dedicated Server cancellation requires a thirty (30) day notice in writing via e‐mail and an official cancellation via the Client Area of the Support Portal.
3.4 Certified Hosting may also terminate this Agreement in its sole discretion at any time for any or no reason. (“Termination without Cause”). In such case, Certified Hosting will provide You with thirty (30) days written notice before the discontinuation of Services.
3.5 If Certified Hosting cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.4, Certified Hosting shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Certified Hosting terminates the Agreement for cause all prepaid hosting fees will be forfeited and are not refundable.
3.6 Cancellations must be done in writing via the Client Area of the Support Portal. We require You to cancel in writing so that We can confirm Your identity and to confirm with You that You are prepared for all of Your content to be removed from Our servers. Once We receive Your cancellation and have confirmed all necessary information with You via e‐mail, We will inform You via email to the email address on file that Your account has been canceled. If You do not receive the confirmation email within twenty‐four (24) hours after submitting Your cancellation request, please contact Us immediately via phone.
3.7 Prepaid hosting customers who wish to cancel will be refunded only the remaining balance of their service. This balance is calculated using the difference between Your original payment and the amount of usage as of the date of the cancellation request. Usage is billed at the plan’s regular monthly rate.
3.8 Cancellation of any account which included a “free domain name” will result in that customer being charged the full price for each domain name. Domain name pricing will be determined as of the date of the cancellation request.
3.9 For any Virtual/Shared hosting and/or Reseller Clients who paid the first invoice with a credit card or with PayPal®, Certified Hosting gives You an unconditional “Any Time Money Back Guarantee.” If Virtual/Shared or Reseller clients are not completely satisfied with Our Service, You will be given a full refund for any unused time. You must cancel via the Client Area of the Support Portal to take advantage of this guarantee. The following payment methods are non‐refundable, and any refund attempt for Clients using these methods of payment will result in a credit posted to the hosting account: bank wire transfers, Google® Check Out, checks, and money orders. Refund requests for Virtual/Shared and Reseller accounts after the initial thirty (30) days will be treated as a cancellation request, with any prepaid fees refunded on a prorated basis of any unused time.
3.10 Only first time customers of Certified Hosting are eligible for any refund or guarantee offered by Us. If You previously had an account with Certified Hosting and cancelled it, any and all subsequent accounts will not be eligible for a refund. All refunds are granted at Our sole discretion, and all refund decisions are final.
3.11 IMPORTANT: Certified Hosting does not offer refunds for Dedicated server accounts, installation and set-up fees, administrative fees, service add-ons such as Certified Protection and additional IP addresses, or domain name purchases/registrations.
3.12 Any abuse of our staff in any medium or format will result in the suspension or termination of your services.
3.13 Any violations of this Agreement or any other Certified Hosting policy will result in Your waiver of any right You may have had to any refunds.
3.14 Domain name transfers: Domain names registered through Us are eligible for transfer to third-party registrars sixty (60) days after registration with Us. Prior to eligibility for transferring a domain name, You may update the domain name server address to point to third-parties.
4. ACCOUNT SET UP
4.1 When You register for the Services, Certified Hosting will ask You to select a user ID and a password. You may use the Services or modify Your information, data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is not part of any domain hosted by Us. All notices and communications between Us will be sent to this email address You provide, and You are therefore required to keep this address current or update Your account profile if Your address changes. It is also Your responsibility to make sure that Our domain(s), including certifiedhosting.com, are not included in any spam block list used by You or Your mail provider.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3.2 of this Agreement.
4.4 For Dedicated server or other high risk accounts, You must supply a copy of a valid government identification card and scanned copy of the credit card used to open Your account. If You do not provide these documents in the time frame requested, Your order may be denied.
4.5 You are responsible for all activity transpiring under Your account. We therefore highly recommend that You secure file, directory, and script permissions to the most restrictive settings possible. You agree that You have the technical ability to properly operate a web site and that You are responsible for any actions performed under Your account, including but not limited to, damage caused to Your site, Certified Hosting’s site and/or equipment, and any other site.
4.6 If You have an existing site that You are migrating to Certified Hosting, We may elect to assist You with moving Your site’s files and getting Your site up and running. This service is purely at Our discretion, and We make no guarantees that Your site will be compatible with Certified Hosting. Due to the proprietary nature of some hosting platforms, it may not be possible to migrate any or all of Your old site.
5. INTELLECTUAL PROPERTY RIGHTS
All Services provided by Certified Hosting may only be used for lawful purposes.
5.1 As between You and Certified Hosting, Certified Hosting acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, music, sound, audio visual works, motion pictures, photographs, animation, video and graphics) supplied by You for use on Your web site (“Your Content”). You hereby grant to Certified Hosting a non‐exclusive, worldwide and royalty‐free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable Certified Hosting to perform its obligations hereunder.
5.2 In connection with performance of the Services and at the sole discretion of Certified Hosting with no obligation, Certified Hosting may provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Certified Hosting or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know‐how, methodologies, equipment, and processes used by Certified Hosting to provide You with the Services (“Host Materials”). Subject to the terms and conditions of this Agreement, Certified Hosting hereby grants You a limited, revocable, non‐transferable, non‐exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and Certified Hosting, You acknowledge and agree that Certified Hosting owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Certified Hosting.
5.3 This Agreement does not constitute a license to use Certified Hosting’s trade names, service marks or any other trade insignia. Any use of any of Certified Hosting’s trade names, service marks or any other trade insignia shall be subject to Certified Hosting’s prior written consent.
5.4 As a specific matter – You are not permitted to register any Uniform Resource Locator (URL) or world wide web address that contains any of Our trademarks or URLs or that contain any terms that are confusingly similar to Our trademarks or Our URLs.
5.5 You may not register any URL or world wide web addresses that consist of, or contain, common or likely misspellings of Our trademarks or Our URLs.
5.6 In the event that You wish to register a URL and You are unclear as to whether the URL would be considered to be a violation of this provision, You are invited to contact Us. Upon receipt of Your request, We will issue a determination to You within thirty (30) days as to whether the URL would be a violation of this Agreement.
5.7 In the event that You do not receive a response from Us within thirty (30) days, You should consider registration of the URL to be a violation of this Agreement and You should not register the URL.
5.8 If You violate this Agreement, You will immediately transfer the offending URL to Us upon demand, and You agree to pay Us $5000 in stipulated liquidated damages for each URL registered in violation of this Agreement.
5.9 You specifically agree to pay these liquidated damages. In agreeing to pay these liquidated damages, You acknowledge that this amount is not a penalty, and that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
5.10 If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
5.11 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
5.12 DMCA COMPLIANCE
We respect the intellectual property of others, and We ask Our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide Our Designated Copyright Agent with the following information:
A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.
B. A description of the copyrighted work or other intellectual property that You claim has been infringed.
C. A description of where the material that You claim is infringing is located on the Services.
D. Your physical address, telephone number, and email address.
E. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and.
F. A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may send Your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
Walters Law Group
781 Douglas Ave.
Altamonte Springs, FL 32714
Fax: (407) 774‐6151
NOTE: Please do not send other inquiries or information to Our Designated Agent.
Notice and Take Down Procedures
The Site implements the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement. The Site reserves the right at any time to disable access to, or remove any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. It is the firm policy of the Site to terminate the account of repeat copyright infringers, when appropriate, and the Site will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act (“DMCA”). The Site’s DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with §512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to §512 of the DMCA, the Site shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements. When the Designated Agent receives a valid notice, the Site will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. At that point, You, the Client, may utilize the following counter‐notification procedure.
5.13 DMCA Counter-Notification Procedure
If the Recipient of a Notice of Claimed Infringement (“Notice”) feels that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in response to a Notice as outlined in Section 5.12 above, the Recipient is permitted to submit a counter-notification pursuant to Section 512(g)(2) and (3) of the DMCA. A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations which may cause any claims to be brought against Us relating to the Content.
To submit a counter-notification, please provide Our Designated Copyright agent the following information:
A: A specific description of the material that was removed or disabled pursuant to the Notice.
B. A description of where the material was located within the Site or the Content before such material was removed and/or disabled. Please provide the specific url if possible.
D. A statement reflecting the Recipient’s belief that the removal or disabling of the material was done so erroneously. For convenience, the following format may be used:
“I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled.”
E. The Recipient’s physical address, telephone number, and email address.
Written notification containing the above information must be signed and sent to:
Lawrence G. Walters, Esquire
Walters Law Group
781 Douglas Ave.
Altamonte Springs, FL 32714
Fax: (407) 774-6151
Alternately, to email the above information, You must electronically sign the email and send it to:
Notice@DMCANotice.com Do not send any other information or material to the DMCA Agent.
After receiving a DMCA-compliant counter-notification, Our Designated Copyright Agent will forward it to Us, and We will then provide the counter-notification to the entity who first provided the Notice concerning material in the Recipient’s Content.
Additionally, within ten to fourteen (10-14) days of Our receipt of the counter-notification, We will replace or cease disabling access to the disputed material provided that We or Our Designated Copyright Agent have not received notice from the entity who first provided the Notice that such entity has filed a legal action pertaining to the disputed material. The Site reserves the right to modify, alter or add to this policy, and all users should regularly check back regularly to stay current on any such changes.
6. CONTENT AND ACCEPTABLE USE POLICY
6.1 You agree to comply with the content and acceptable use provisions found in this Agreement. Certified Hosting reserves the right to modify this Agreement at any time by posting the modified policy on its web Site. You agree to monitor Certified Hosting’s home page for any changes to this Agreement.
6.2 Certified Hosting may, at its sole discretion, immediately terminate Your access to the Services, and terminate this Agreement for cause, if Your conduct violates the acceptable uses outlined below, or if any of Your end users’ or downstream customers’ conduct violate such acceptable uses.
6.3 We will not actively monitor the content of the web sites being hosted by Us, although We, at our sole discretion, may elect to electronically monitor Our network and may disclose any content or records concerning Your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate Our network and protect any of Our customers. Certified Hosting will investigate complaints of a violation of a third party right or of any portion of this Agreement. Certified Hosting will cooperate with those attempting to minimize Internet abuse and reserves the right to institute “filters” or other mechanisms for that purpose. Certified Hosting will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your end users are engaged in illegal activities.
6.4 You acknowledge and expressly agree that Certified Hosting will not be liable to You or any of Your end users for any action Certified Hosting takes to remove or restrict access to the Services for any alleged violation of this Agreement, or exercising its rights as a Good Samaritan under the Telecommunications Act of 1996, Section 230 of the Communications Decency Act, or under the Digital Millennium Copyright Act of 1998.
Without Our express written consent, You may not:
Examples of unacceptable material on all Virtual/SharedShared and Reseller servers include:
Examples of unacceptable material on all Dedicated servers include:
Our abuse department may contact you regarding Your use of the Services. You must respond to any such communication within forty‐eight (48) hours from the date and time of the communication or face possible suspension and/or termination. Certified Hosting reserves the right to immediately suspend or terminate the account of any customer violating the above‐referenced Acceptable Use Policy, without notice, if in Our discretion, it appears that illegal activity is being facilitated or if the public welfare is in danger. All abuse issues must be dealt with via ticket/email.
6.5 Certified Hosting takes the issue of child pornography very seriously, and any potential harm to minors is strictly prohibited. Content that is or may be perceived to be child pornography will be immediately removed upon notification or detection by Us. Additionally, any account whose website(s) hosts or links to child pornography will be terminated immediately and without notice to You. If the account is a Certified Hosting reseller account, the account will be suspended and the reseller will be directed to terminate the account. Consistent with federal law, Certified Hosting will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your downstream customers or end users are engaged in such illegal activities.
6.6 Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material on Your site. You agree not to allow minors to view any such site, and agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: www.getwise.org or http://www.child‐internet‐safety.com/internet_filters.php, among others. Please note that this Site makes no representation or warranty regarding any of the products or services referenced on such sites, and recommend that the user conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing this site if Your computer can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age‐restricted content on Our Site from being displayed or accessed by Your children or wards.
Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that Certified Hosting operates as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of Your content (including third‐party content). We do not create such content, and We are not responsible for the publication of remarks or communications of third‐parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Certified Hosting to remove any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our status as an interactive computer service. Nothing contained in this paragraph is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this User Agreement between You and Us.
6.7 We respect the intellectual property rights of all parties, and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available on request to our customers or subscribers.
7. ZERO TOLERANCE SPAM POLICY
7.1 You agree to comply with Certified Hosting’s Anti‐Spam Policy which may be found at http://certifiedhosting.com/policies/antispam.html and which is hereby incorporated by reference as an indispensable part of this Agreement.
7.2 Certified Hosting reserves the right to modify the Anti‐Spam Policy at any time by posting the modified policy on its web site. You agree to monitor Certified Hosting’s home page for any changes to the Anti‐Spam Policy. Your continued use of the Services after the effective date of any changes to the Anti‐Spam Policy constitutes Your manifestation of intent to be bound by such changes.
8.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow Certified Hosting’s cancellation procedure set forth in this Agreement.
8.2 You must keep all payment information current to avoid late and/or missing payments. We provide a 10 day grace period from the date Your invoice is created until the time Your payment is due. Any payment received after the 10 day grace period is considered untimely and will result in a $10.00 late fee and/or suspension of Your account until Your balance is paid in full.
8.3 Certified Hosting is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. You agree to pay any taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. If Certified Hosting should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Certified Hosting will invoice You for the difference between payment received and the Fees due. You agree to pay all attorney and collection fees arising from our efforts to collect any past due Fees from You to the extent allowed by law.
8.4 Any overpayment due to multiple PayPal® subscriptions will be added toward future invoices and will not be refunded via PayPal®.
8.5 Subject to specific provisions within this Agreement, Certified Hosting reserves the right to change the monthly payment amount and any other charges at anytime.
8.6 Coupons and Discount Codes – From time to time, Certified Hosting may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first‐time customers of Certified Hosting and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward domain name purchases or upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may result in Termination for Cause.
9. BACK UPS & DATA LOSS
You agree that Your use of Certified Hosting’s Services is at Your own risk. You are solely responsible for creating backups of Your Content. While Certified Hosting may make backups of Your Content when performing routine maintenance or when performing system‐wide backups, You should not rely on Our backup procedure as Your sole method of preserving Your Content. Certified Hosting’s backup procedure will not backup files larger than 40MB, nor will We backup email. If We do make a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
10. RESELLER ACCOUNTS AND CLIENT RESPONSIBILITY
10.1 Certified Hosting is not responsible for providing technical support to the customers of Our Reseller clients. If a Reseller is unable to assist its customers with technical support issues, We reserve the right to suspend that Reseller account until the Reseller is able to properly support its clients.
10.2 If a Reseller requires Our support for a Reseller’s client, the Reseller must make the request, and not the Reseller’s client.
10.3 Resellers are responsible for all content, data, and transmissions of the Reseller and of the Reseller’s clients. We will hold the Reseller responsible for any violations of any applicable law and this Agreement, whether or not such violation is the action of the Reseller or the Reseller’s client.
11. VIRTUAL/SHARED HOSTING: (non-reseller accounts)
11.1 Only Reseller accountholders are permitted to resell hosting services. Any Virtual/Shared hosting client found to be reselling services may be Terminated for Cause.
11.2 Virtual/Shared hosting accounts must have a web site associated with the account. Using a Virtual/Shared hosting account as a file repository or backup service is prohibited.
11.3 Virtual/Shared customers receiving “Unlimited” storage and “Unlimited” bandwidth understand and agree that such storage and/or bandwidth may be limited if such customers’ website or files are causing performance and/or reliability issues with the shared server. Any such performance issue caused by Your content may cause Your account to be suspended unless You take advantage of Our Certified Protection policy. See Section 13.3 of this Agreement for more details.
11.4 See Section 6.4 of this Agreement and http://certifiedhosting.com/unlimited for content and other restrictions on Virtual/Shared accounts.
12. DEDICATED SERVER POLICIES
12.1 Bandwidth pricing and measurement frequency is subject to change at Certified Hosting’s discretion. Dedicated plan Clients affected by such changes will be notified no less than thirty (30) days in advance by Certified Hosting.
12.2 Dedicated server payments are NONREFUNDABLE, and Dedicated server accounts are not eligible for the thirty (30) day money back guarantee. For example, if You submit payment for twelve (12) months of service, service will be provided for twelve (12) months and will not be refunded if You choose to discontinue service with Certified Hosting mid‐way through the term. However, if, pursuant to Section 3.4 of this Agreement, Your account is Terminated without Cause, Certified Hosting will provide You with thirty (30) days written notice before the discontinuation of Services.
12.3 If an existing server is required to undergo a hardware upgrade, or if You request a hardware upgrade, Certified Hosting will perform such upgrade. Hardware upgrades will be subject to a mutually agreed upon fee paid by You as well as an increase in the monthly service rate.
12.4 Certified Hosting reserves the right to modify the Dedicated server packages advertised on its website at its discretion. Unless otherwise agreed to, no hardware upgrade, fee decrease, or other benefit advertised on Certified Hosting’s website will be applicable to existing customers.
12.5 To protect the security of managed dedicated servers and to secure the network, kernel, and operating system, Certified Hosting reserves the right to apply security patches, upgrade the operating system, or any other measure Certified Hosting deems necessary. Certified Hosting may also need to reset the password on dedicated servers in order to perform maintenance and security audits. You must keep a valid email address (which is separate from any domain for which We provide Services) and root password on file with Us to prevent downtime caused by any forced password resets.
12.6 For unmanaged dedicated servers, it is Your responsibility to apply security patches and maintain the security of Your server. Failure to adequately protect Your server is grounds for termination of Services without refund. Alternately, and at Our discretion, We may take any steps We deem necessary to protect the security of Our network and servers. Such action may result in additional charges to Your account.
13. RESOURCE USAGE
13.1 Certified Hosting does not impose hard set limits on each account’s system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Certified Hosting will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
13.2 Except where expressly permitted by law, You may not translate, reverse‐engineer, decompile, disassemble, or make derivative works from any of the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to Certified Hosting, You hereby agree to pay liquidated damages of $5000.00 plus any and all fees associated with recovery of these damages, including attorneys’ fees and costs.
13.3 Certified Hosting Clients have the option to add on a Certified Protection Policy to any Virtual or reseller hosting plan. The Certified Protection Policy will insure an account is never suspended for resource usage. You may view the details of the Certified Protection Policy here: http://certifiedhosting.com/protection/.
13.4 INODES: The use of more than 250,000 inodes on any shared account will result in a warning, and if no action is taken future suspension. Accounts found to be exceeding the 100,000 inode limit will automatically be removed from our backup system to avoid over-usage. Every file (a webpage, image file, email, etc) on your account uses up 1 inode. Sites that slightly exceed our inode limits are unlikely to be suspended; however, accounts that constantly create and delete large numbers of files on a regular basis, have hundreds of thousands of files, or cause file system damage may be flagged for review and/or suspension. The primary cause of excessive inodes seems to be due to users leaving their catchall address enabled, but never checking their primary account mailbox. Over time, tens of thousands of messages (or more) build up, eventually pushing the account past our inode limit. To disable your default mailbox, login to cPanel and choose “Mail”, then “Default Address”, “Set Default Address”, and then type in: :fail: No such user here.
13.5. BANDWIDTH USAGE Your monthly bandwidth allowance is determined by the specific package for which You sign up. If your account exceeds Your monthly allowance, We reserve the right to suspend Your account until You upgrade to a package containing a sufficient bandwidth allowance, suspend Your account until the start of the next month’s allocation time period, terminate Your account pursuant to Paragraph 3.2 of this Agreement, and/or change You an overage fee. Unused bandwidth is not carried over to the next month for purposes of a credit.
14. UPTIME GUARANTEE
14.1 Certified Hosting’s Service Level Agreement (“SLA”) may be found at http://certifiedhosting.com/sla and which is hereby incorporated by reference as an indispensable part of this Agreement. The terms of the SLA are incorporated, with permission, by Certified Hosting’s upstream provider.
14.2 Certified Hosting reserves the right to modify the Service Level Agreement at any time by posting the modified policy on its web site. You agree to monitor Certified Hosting’s home page for any changes to the Service Level Agreement. Your continued use of the Services after the effective date of any changes to the Service Level Agreement constitutes Your manifestation of intent to be bound by such changes.
15. PRICE CHANGE
The base amount You pay for hosting will never increase from the date of purchase. However, customers using coupon codes for their initial order with Us may see their price increase upon a renewal of service. As stated in this Agreement, coupon codes are only applicable to the initial term of service for new customers (see Section 8.6 of this Agreement). We reserve the right to change prices listed on certifiedhosting.com at anytime, without notice, and the right to increase the amount of resources given to plans at any time. It is Your responsibility to check Our website for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. Certified Hosting does not automatically update Your plan. All upgrades or downgrades will be performed at Your request and may incur downgrade fees or require reinitiating service with Us. Note that charges related to bandwidth overage for Dedicated plans are not part of this provision. Bandwidth usage fees for Dedicated plans may be changed pursuant to Paragraph 12.1 of this Agreement.
You agree to defend, indemnify, and hold Certified Hosting and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) all conduct and activities occurring under Your user ID and password; (d) any item or service sold or advertised in connection with Your Content or Your information and data; (e) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (f) any claim or contention that Your Content or Your information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) any third party’s access or use of Your Content or Your information and data; (h) any violation of the applicable Acceptable Use Policy; and, (i) to the extent applicable to Your site, You warrant and represent that: 1) Your Content complies with Title 18, U.S.C. s. 2257 and 28 C.F.R. s. 75 et seq., as amended; 2) all performers depicted in the Your Content were over the age of eighteen (18) when the content was created; 3) Your Content does not contain any images which constitute child pornography, obscenity, bestiality, actual depictions of violence, or activities otherwise illegal in the United States of America; and 4) all representations and reproductions of any aspect of the likeness of actual people in the Your Content have been duly authorized and permitted by the persons depicted. In the event of a claim under this section, Certified Hosting shall be permitted to select legal counsel to provide a defense to such claim. Certified Hosting reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Certified Hosting, which shall not be unreasonably withheld.
17. NO WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. Certified Hosting 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, TITLE AND NON‐INFRINGEMENT. OTHER THAN AS SET FORTH IN PARAGRAPH 14, Certified Hosting MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES Certified Hosting MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
Certified Hosting MAY MAKE THIRD‐PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES (“THIRD‐PARTY SERVICES”). Certified Hosting HAS NO CONTROL OVER THE CONTENT OF THIRD‐PARTY SERVICES. USE OF ANY THIRD‐PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD‐PARTY.
Certified Hosting MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Certified Hosting OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON Certified Hosting’s WEBSITE.
UNLESS OTHERWISE AGREED TO IN WRITING, Certified Hosting DOES NOT MAKE A BACK‐UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK‐UP OF YOUR SITE(S) ON A REGULAR BASIS.
18. LIMITATION ON LIABILITY
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB‐SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL Certified Hosting BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB‐SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB‐SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL Certified Hosting, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON‐ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF Certified Hosting HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF Certified Hosting AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO Certified Hosting DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
19. GENERAL PROVISIONS
A. Jurisdiction, Venue, and Choice of Law.
This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of California, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of San Bernardino County, California for disputes resolved under this agreement by litigation. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in San Bernardino County, California.
If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party must submit the issue to binding arbitration in accordance with the then‐existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in San Bernardino County, California and conducted by a single arbitrator, knowledgeable in Internet and e‐Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
E. No Waiver.
Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
F. Complete Agreement.
This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
G. Relationship Between the Parties.
Certified Hosting is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
I. Force Majeure.
Certified Hosting shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Certified Hosting’s performance.
You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
K. Complaints – California Residents:
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/online_services/complaints/consumer complaint.shtml
L. Government Rights.
The software elements of the Host Materials have been developed at private expense and is “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
M. Notices Electronic Communications.
All notices permitted or required under this Agreement may be sent by e‐mail, fax, express mail, mail, or registered mail to the e‐mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender’s identity and the communication’s authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.
This document prepared by: Lawrence G. Walters, Esq., Walters Law Group. All Rights Reserved. © Lawrence G. Walters (2010).