| 1. Introduction
This Terms of Service is an agreement between Customer and dmihosting.com (Digital
Millenium Inc.) ("Agreement") and applies to Customer's account(s) with
dmihosting.com (Digital Millenium Inc.). PLEASE READ THIS DOCUMENT CAREFULLY and retain it
for future reference. Please note that the information contained herein is subject to
change without notice. Customer agrees to periodically consult this website for changes or
amendments to this Agreement. dmihosting.com (Digital Millenium Inc.) is under no
obligation to, provide notices of any amendment, modification or update of this Agreement
to Customers.
2. General Provisions
While using Services provided by dmihosting.com (Digital Millenium Inc.), you agree to the
following terms and conditions.
Definitions
"We" "Us"
"Provider" or "dmihosting.com (Digital Millenium
Inc.)" refers dmihosting.com (Digital Millenium Inc.), Inc.
and
"You" "Your" "Client"
or "Customer" refers to each person or entity who applies for
internet service or is a designate of any one who applies for internet service with
dmihosting.com (Digital Millenium Inc.).
3. Services Provided by dmihosting.com (Digital Millenium Inc.)
dmihosting.com (Digital Millenium Inc.) will rent Internet server space
("Services") to its customers for the purpose of allowing customers to provide
http internet content to the general public. The Services allow dmihosting.com (Digital
Millenium Inc.) customers to maintain internet websites, receive and maintain e-mail
accounts, and access web space via FTP to upload files for their websites. dmihosting.com
(Digital Millenium Inc.) customers will use the provided Services in a manner consistent
with all applicable State and Federal laws. dmihosting.com (Digital Millenium Inc.) will
make no effort to edit, control, monitor or restrict the content of data other than as
necessary to provide Services. If any of the activities referenced below are committed,
dmihosting.com (Digital Millenium Inc.) may immediately terminate Customer's account(s)
without notice. dmihosting.com (Digital Millenium Inc.) will be the sole and final arbiter
as to what constitutes a violation of the terms and conditions of this Agreement.
4. Duration of Agreement and Renewals
The Initial Term shall begin upon confirmation of Customer's order or commencement of the
Services to Customer and the Term's length shall be indicated in the Order Form. 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.
This Agreement may be terminated by either party by giving the other party written notice
at least 30 days prior to the renewal date of the Term, or by dmihosting.com (Digital
Millenium Inc.) in the event of nonpayment by Customer or by dmihosting.com (Digital
Millenium Inc.) , at any time, without notice, if in dmihosting.com (Digital Millenium
Inc.) 's judgment Customer has in any way breached this Agreement.
5.Payment Obligations and Cancellations
A-)Payment Obligations: Full payment is required in advance,
before hosting service is established. You grant dmihosting.com (Digital Millenium Inc.)
the right to debit the credit card or account you provided on the Order Form for services
you signed up for, until such service is cancelled by you in writing or is cancelled by
dmihosting.com (Digital Millenium Inc.) according to terms of this Agreement. You warrant
and represent that the information you supply in the Order Form (or other information that
dmihosting.com (Digital Millenium Inc.) may require) is accurate and truthful. All
payment-due notices will be sent by Email. No bills or invoices will be sent by postal
mail or fax. If payment is not received by the renewal date, your account will be
suspended. To activate such a suspended account which was suspended due
to non payment you will need to pay $30 re-opening charges. Max. Period of
suspension due to non payment is 5 days after which accounts are permanently deleted and
terminated.
There is a $100 fine for chargebacks which
may occur if Customer disputes dmihosting.com service charges directly with Customer's
credit card bank.
B-)Cancellation: You may cancel at anytime. If you cancel before
the first 30 days, please refer to the details under "Limited 30-day Money Back
Guarantee." If you cancel after the first 30 days from the opening of your account,
you will be obligated to pay all fees and charges accrued prior to the effectiveness of
the cancellation. dmihosting.com (Digital Millenium Inc.) will refund to you the prepaid
fees for basic hosting for the full months remaining after effectiveness of cancellation,
less any prior fees and charges, fee for the running month and an early
cancellation fee of $25. For the beginner plan a separate cancellation fee of $25
will not be charged after min. 30 days of service. Instead the amount left over will be
absorbed as cancellation charges. In simple terms refunds for beginner
hosting plans are not possible after 30 days of service. Accounts that are
terminated by dmihosting.com (Digital Millenium Inc.) will not receive any refund. All
cancellations must be received in writing as per the deadlines indicated; E-mail and fax
notifications are acceptable for cancellation please email cancellations@dmihosting.com or fax to
1-530-325-5086. Once your email or fax is received we will forward you a cancellation
request form which must be filled out, signed and faxed to 1-503-568-1561
C-)Limited 30-day Money Back Guarantee
If you are not completely satisfied with our services within the first 30 days from the
opening of the account, you will be given a full refund on your hosting fee excluding
setup fees and additional services. If paid by credit card, refunds will be
issued to the original credit card provided at the time of purchase. If your account has
been cancelled by us due to a breach of the terms and conditions on your part, you will
not be eligible for a refund. Domain name registration is non-refundable.
6. dmihosting.com will act as Reseller or Licensor.
dmihosting.com(Digital Millenium Inc.) is acting only as a reseller or licensor of the
hardware, software and equipment used in connection with the products and/or Services that
were or are manufactured or provided by third parties ("Non-dmihosting.com(Digital
Millenium Inc.) Product"). dmihosting.com(Digital Millenium Inc.) shall not be
responsible for any changes in the Services that cause the Non-dmihosting.com(Digital
Millenium Inc.) Product to become obsolete, require modification or alteration, or
otherwise affect the performance of the Services. Any malfunction or manufacturer's
defects of Non-dmihosting.com(Digital Millenium Inc.) Product either sold, licensed or
provided by dmihosting.com(Digital Millenium Inc.) to Customer or purchased directly by
Customer used in connection with the Services will not be deemed a breach of
dmihosting.com(Digital Millenium Inc.)'s obligations under this Agreement. Any rights or
remedies Customer may have regarding the ownership, licensing, performance or compliance
of Non-dmihosting.com(Digital Millenium Inc.) Product are limited to those rights extended
to Customer by the manufacturer of such Non-dmihosting.com(Digital Millenium Inc.)
Product. Customer is entitled to use any Non-dmihosting.com(Digital Millenium Inc.)
Product supplied by dmihosting.com(Digital Millenium Inc.) only in connection with
Customer's permitted use of the Services. Customer shall use its best efforts to protect
and keep confidential all intellectual property provided by dmihosting.com(Digital
Millenium Inc.) to Customer through any Non-dmihosting.com(Digital Millenium Inc.) Product
and shall make no attempt to copy, alter, reverse engineer, or tamper with such
intellectual property or to use it other than in connection with the Services. Customer
shall not resell, transfer, export or re-export any Non-dmihosting.com(Digital Millenium
Inc.) Product, or any technical data derived there from, in violation of any applicable
United States or foreign law.
7. IP Address Ownership.
During the course of providing Services to customer dmihosting.com(Digital Millenium Inc.)
may assign to Customer an Internet Protocol address. Customer agrees that it has no right
to a particular IP address under this agreement and accordingly dmihosting.com(Digital
Millenium Inc.) shall retain ownership of any IP address or addresses used by Customer
under this agreement and that dmihosting.com(Digital Millenium Inc.) reserves the right to
change or remove any and all such Internet Protocol numbers and addresses, in its sole and
absolute discretion.
8. Caching.
Customer expressly grants to dmihosting.com(Digital Millenium Inc.) a license to cache
Customer's Content including content supplied by third parties and hosted by
dmihosting.com(Digital Millenium Inc.) under this Agreement and Customer agrees to
indemnify and hold harmless dmihosting.com(Digital Millenium Inc.) for any infringement of
any third party's intellectual property rights thereby affected from said caching.
9.Customer Use of Services
A-)Client Content:
Account holders are not permitted to resell web-hosting
services of their website to other parties. Client agrees that webpages and files uploaded
to our servers will not violate any state, federal or foreign laws or regulations;
infringe on any intellectual property rights of dmihosting.com (Digital Millenium Inc.) or
any third party; be defamatory, slanderous or trade libelous; be threatening or harassing;
be discriminatory based on gender, race, age; promote hate; or contain viruses or other
computer programming defects which result in damage to dmihosting.com (Digital Millenium
Inc.) or any third party. Customers may not run IRC bots or clients. Unacceptable uses of
our service also include: Bulk emailing, unsolicited emailing, newsgroup spamming,
religious sites except islamic sites, music download service, dating
services, pornographic content or links to adult websites, nudity, selling alcohol or
drugs or linking to websites selling alcohol or drugs, copyrighted MP3s, copyrighted video
movies, illegal content, copyright infringement, trademark infringement, Warez, hacks,
cracks, or software serial numbers. dmihosting.com (Digital Millenium Inc.) will be the
sole and final arbiter as to what constitutes a violation of this policy.
No Unauthorized Scripts or Executables.
Customer agrees not to run any scripts, executables or other programs or processes on
dmihosting.com(Digital Millenium Inc.)'s servers or other equipment that will in any way
adversely affect the performance of said equipment.
DmiHosting.com doesn't provides TELNET/SSH access to clients for
security reasons. If you are caught accessing our servers via these
methods your account will be immediately terminated.
B-)Disk and Bandwidth Usage:
Customer agrees that dmihosting.com(Digital Millenium Inc.)
will monitor and measure Customer's bandwidth and disk usage and in the event that
Customer exceeds the bandwidth or disk usage allocated to each hosting package
dmihosting.com(Digital Millenium Inc.) may take corrective action which may, at
dmihosting.com(Digital Millenium Inc.)'s sole discretion, include the assessment of
additional charges, suspension, disconnection or discontinuance of any and all Services,
or termination of this Agreement. Customer agrees that in the event of a dispute
dmihosting.com(Digital Millenium Inc.)'s monitoring reports shall be the final method of
determination how much disk space and bandwidth was used and agrees to pay the excess
usage charges when due. To avoid unfair resource distribution at no time shall Customer
use more than 10 simultaneous processes by and with any of Customer's applications. All
images in a Customer's hosting account must be linked to from pages within the Customer's
hosting account. It is a violation of this agreement if Customer uses this account as
merely an image, sound or file library. Binary files such as images, video and sound (i.e.
MP3, WAV, RA, GIF, JPG but not limited to those file extensions) may only account for a
maximum of 50% of Customer's total bandwidth usage before customer must upgrade to a
higher performance solution.
Sites that use more bandwidth or disk space than
their allocated quota will be charged extra fee or suspended.
10.Excessive Resource User Policy:
A-)Resources are defined as
bandwidth and/or processor utilization. A website is considered to be using
"Excessive amounts of resources" when it monopolizes the resources available by
using 10% or more of system resources for longer than 60 seconds. There are numerous
activities that could cause such problems; these include: CGI scripts, PHP, FTP, HTTP,
MySQL etc. A site that consumes more bandwidth or disk space then its allocated quota is
also considered using "excessive resources." This policy is only implemented in
extreme circumstances and is intended to prevent the misuse of our servers. We reserve the
rights to suspend or terminate any hosting account that we feel is jeopardizing our
network. dmihosting.com (Digital Millenium Inc.) will be the sole and final arbiter as to
what constitutes a violation of this policy.
B-)No "Spam" Policy: UCE/UBE or "Spam"
originating from a dmihosting.com (Digital Millenium Inc.) account, or associated with a
dmihosting.com (Digital Millenium Inc.) account, is not tolerated. This includes any
e-mail that promotes web sites hosted on a dmihosting.com (Digital Millenium Inc.) account
but is sent from an e-mail address not associated with that dmihosting.com (Digital
Millenium Inc.) account. Client shall not use their dmihosting.com (Digital Millenium
Inc.) services for chain letters, junk mail, bulk-email, or any use of distribution lists
to any person who has not given specific permission to be included in such a process.
dmihosting.com (Digital Millenium Inc.) reserves the right to deactivate or terminate any
account(s) upon any indication of such activity without notice.
There will be a $100 Fine if an account was
suspended for policy violation.
C-)False Information: False Information. Client agrees not to post
false or inaccurate information to news groups in violation of the news groups' rules and
regulations. If any news groups or service providers contact dmihosting.com (Digital
Millenium Inc.) concerning unethical, false or unlawful activities by you, dmihosting.com
(Digital Millenium Inc.) reserves the right to terminate your service without notice.
D-)Licensed Software Only: Client agrees to use only properly
licensed third party software in connection with Client's use of the Services.
E-)Back-Up Files: dmihosting.com (Digital Millenium Inc.) will
make every reasonable effort to protect and backup data for Client on a regular basis,
however dmihosting.com (Digital Millenium Inc.) does not guarantee the existence,
accuracy, or regularity of its backup services and, therefore, client is solely
responsible for independent backup of data stored on Providers server and network.
Therefore we recommend that you back up your data yourself.
F-)99.9% Uptime: dmihosting.com
(Digital Millenium Inc.) has a 99.9% average uptime across our entire network at large,
which includes web servers, mail servers, and more - as a whole. If a single server is
temporarily offline, the rest of the dmihosting.com (Digital Millenium Inc.) servers
remain unaffected and uninterrupted, thus contributing to our overall uptime.
G-)Server/Network Maintenance
You understand and agree that a network outage may and can occur beyond dmihosting.com
(Digital Millenium Inc.)'s control and dmihosting.com can not be held accountable for any
such outage or service interruption.
11. Intellectual Property Rights
Customer acknowledges that dmihosting.com (Digital
Millenium Inc.) owns all trade names, trademarks, service marks, inventions, copyrights,
trade secrets, patents, know-how and other intellectual property rights relating to the
Services and their provision. Customer further acknowledges and agrees that nothing in
this Agreement shall constitute a license to Customer to resell or trade under any of
dmihosting.com (Digital Millenium Inc.)'s intellectual property.
12.Disclaimer of Warranty
You agree to use the Services and any information obtained through or from dmihosting.com
(Digital Millenium Inc.) at your own risk. You acknowledge and agree that dmihosting.com
(Digital Millenium Inc.) exercises no control over, and accepts no responsibility for, the
content of information passing through dmihosting.com (Digital Millenium Inc.)'s host
computers, network hubs, points of presence or the internet. THE SERVICES PROVIDED UNDER
THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. dmihosting.com (Digital
Millenium Inc.) MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE SERVICES IT PROVIDES. dmihosting.com (Digital Millenium Inc.)
MAKES NO WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR-FREE OR THAT ANY
RESULTS OBTAINED FROM THE USE OF SERVICES IS ACCURATE AND RELIABLE. dmihosting.com
(Digital Millenium Inc.) EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE CONTENT OF ANY DATA
TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S
CUSTOMERS VIA THE SERVICES PROVIDED BY dmihosting.com (Digital Millenium Inc.). NO ORAL
ADVICE OR WRITTEN INFORMATION GIVEN BY ANY dmihosting.com (Digital Millenium Inc.) PERSON
WILL CREATE ANY WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER'S OWNERS, EMPLOYEES, OR
AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this Section will survive any
termination of this Agreement.
dmihosting.com (Digital Millenium Inc.) is not responsible for any interruption in service
or down time that may occur, whether due to external network disruptions or negligence of
dmihosting.com (Digital Millenium Inc.). This includes loss of data resulting from delays,
non-deliveries, wrong delivery, equipment failure and any and all other service
interruptions caused by dmihosting.com (Digital Millenium Inc.).
13.No Liability
You agree that dmihosting.com (Digital Millenium Inc.) will not be responsible for any
losses that may incur where Services are accessed by third-parties through illegal or
otherwise unauthorized means, including but not limited to situations where data is
accessed through the exploitation of security gaps, weaknesses or flaws (whether known or
unknown to dmihosting.com (Digital Millenium Inc.) at the time) which may exist in the
Services or in dmihosting.com (Digital Millenium Inc.)'s equipment used to provide the
Services.
Under no circumstances will dmihosting.com (Digital Millenium Inc.) be liable for any
consequential, indirect, incidental, special or punitive damages, or loss of profits,
revenue, data or use by Customer, any of its customers, or of any other third party,
whether in an action in contract or tort or strict liability or other legal theory.
dmihosting.com (Digital Millenium Inc.) will not be liable to Customer, any of its
customers, or any other third party, for any loss or damages that result or are alleged to
have resulted from the use of or inability to use the Services, or that results from
mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses,
defects, delays in operations, or transmission or any failure of performance, whether or
not limited to acts of God, communications failure, theft, destruction or unauthorized
access to dmihosting.com (Digital Millenium Inc.)'s records, programs, equipment or
services.
dmihosting.com (Digital Millenium Inc.) will not be liable for failure or delay in
performing it obligations if such failure or delay is due to circumstances beyond its
reasonable control, including but not limited to acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance,
interruption of or delay in transportation, unavailability of, interruption or delay in
telecommunications or third party services (including DNS propagation), failure of third
party software or hardware or inability to obtain raw materials, supplies or power used in
or equipment needed for provision of the Services.
This No liability reflects an informed, voluntary
allocation between the parties of the risks (known and unknown) that may exist in
connection with this Agreement. The terms of this Section will survive any termination of
this Agreement.
14.Right to Refuse Service
At its sole discretion, dmihosting.com (Digital Millenium Inc.) has the right to refuse
any and all service or Services to any applicant, Customer, Client whether it be an
individual or legal entity.
15.Indemnification
Customer agrees to indemnify, defend and hold harmless dmihosting.com (Digital Millenium
Inc.), its officers, directors, employees, shareholders and agents from and against any
and all claims, damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including, but not limited to, reasonable
attorney's fees) threatened, asserted, or filed by a third party arising out of or
relating to (i) Customer's use of the Services, (ii) any breach by Customer of this
Agreement, or (iii) any acts or omissions of Customer. The terms of this Section will
survive any termination of this Agreement.
16.Disclosure of Customer Information and Legal Process
Although dmihosting.com (Digital Millenium Inc.) maintains strict confidentiality on
Customer's information, there are certain exceptions in which dmihosting.com (Digital
Millenium Inc.) may disclose information in its possession, including but not limited to
information about the Customer's internet transmissions and website activity in order to
comply with court order, subpoena, discovery request, warrant, statute, regulation or
official governmental requests. dmihosting.com (Digital Millenium Inc.) has no obligation
to notify Customer about whom the information is sought or that dmihosting.com (Digital
Millenium Inc.) has provided the information. Customer acknowledges the above exceptions
and agrees to them without reservation.
17.Governing Law; Jurisdiction; Arbitration
This Agreement is governed by California law and both parties will submit to personal
jurisdiction in California. Any controversy or claim arising out of, relating to or in
connection with this Agreement, or the breach thereof, will be subject to arbitration
administered by the American Arbitration Association ("AAA") in accordance with
its then existing Commercial Arbitration Rules (collectively, the "AAA Rules")
and any award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The place of arbitration will be Los Angeles, California, or any other place
selected by mutual agreement of the parties. An award rendered in connection with
arbitration pursuant to this Section shall be final and binding upon the parties. The
parties agree that the award of the arbitral tribunal will be the sole and exclusive
remedy between them regarding any and all claims and counterclaims between them with
respect to the subject matter of the arbitrated dispute. The terms of this Section will
survive any termination of this Agreement.
18.Assignment
Customer will not have the right to assign this Agreement without the prior written
consent of dmihosting.com (Digital Millenium Inc.).
19.Entire Agreement
This Agreement represents the entire agreement between the parties, and supersedes all
previous representations, understandings or agreements. If any provision of this Agreement
is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement will remain in full force and effect.
Customer hereby represents that he, she or it, is either an individual entering this
Agreement for his or her personal use and is over 18 years of age, or is a corporation
other legal corporate entity, duly organized, validly existing and in good standing under
the laws of the state of its organization and the person acting on behalf of Customer is
duly authorized to accept, execute and deliver this Agreement on behalf of Customer. |
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