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Service Terms
WEB HOSTING AGREEMENT This Web Hosting Agreement
(this "Agreement") sets forth the terms and conditions of your use of CheshireWeb
("CheshireWeb.Com") for web hosting services. You certify
that you are at least 18 years of age. To become a CheshireWeb.Com accountholder,
you must read and agree to be bound by all terms and conditions of this
Agreement, the fee schedules on the Online Order form
(http://www.cheshireweb.com/packages.html) and any policies that are or may be
published by CheshireWeb.Com. This Agreement will become effective when accepted by
CheshireWeb.Com. CheshireWeb.Com may modify the terms and conditions of this Agreement
or the prices of its services, as well as discontinue or change the services
offered. You will be bound by the modified Agreement, prices and/or policies if
you continue to use the services.
1. Scope of Services and Your Obligations
This Agreement defines the terms and conditions of
CheshireWeb.Com's services as offered by CheshireWeb.Com and used by you, including the
provision of web hosting services on CheshireWeb.Com's dedicated servers and
connectivity to the Internet (the "Services"). CheshireWeb.Com will provide the
Services for the amount of server storage space selected in exchange for payment
of fees and full compliance with the terms and conditions of this Agreement. In
performing the Services, CheshireWeb.Com maintains control and ownership of any and
all Internet protocol ("IP") numbers and addresses that may be assigned to you
and reserves the right to change or remove any and all IP numbers and addresses
at its sole discretion.
1.2. As part of the Services, CheshireWeb.Com will also
provide your own web-based Customer Manager (the "Customer Manager") containing
links to your usage history, summaries of the Services you have chosen, and
other current information. You agree to log in to your Customer Manager at least
once every 30 days to ensure that your email address and contact information are up to date. Your Customer Manager permits access to your website for modifying
the service. You will provide a unique password for authentication each time you
access your Customer Manager. You and CheshireWeb.Com will keep such password
confidential.
1.3. You are responsible for producing, electronically
uploading and maintaining HTML files, execution scripts, applets and
applications (the "Upload Materials") to your website, and you hereby warrant
that all Upload Materials shall be owned or properly licensed by you and shall
not adversely impact the Services or violate any rights of any third parties.
You are responsible for ensuring that all Upload Materials will function
properly and as intended. You are responsible for all activity originating from
your website, unless proven to be a victim of outside hacking or address
forgery. You assume responsibility for all material on your website that may be
put on by a third party (such as the usage of Free For All links pages). Use of
the Services requires a certain level of knowledge in the use of Internet
languages, protocols, and software, which can vary depending on your anticipated
use and desired content of your website, and includes, but is not limited to,
the following: web publishing requires knowledge of HTML, properly locating and
linking documents, FTPing web contents, graphics, text, sound, image mapping,
etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well
as Telnet and FTP understanding and capability; CGI-scripts requires knowledge
of the UNIX environment, tar & gunzip commands, Perl, CShell scripts,
permissions, etc.; and mail requires knowledge of use of mail clients to receive
and send mail, etc. You acknowledge that you have the necessary knowledge to
create, modify and maintain your website. CheshireWeb.Com assumes no responsibility
to provide you with such knowledge.
1.4. In connection with the Services,
CheshireWeb.Com may provide for your use certain tools and software, including, but
not limited to, certain specialty scripting software and/or certain programming
language software for designing websites (collectively, the "Tools"). Access to
these Tools may be via your Website Manager. To the extent that such Tools are
provided to you, you are granted a nonexclusive, nontransferable license to use
the Tools in object-code form only for your internal use, solely in connection
with the Services provided under this Agreement.
1.5. During the period that
CheshireWeb.Com provides the Services to you, you hereby grant to CheshireWeb.Com a
nonexclusive, royalty-free, worldwide right and license to digitally display and
host your website and its content, and to use its trademarks, service marks,
trade names, logos and other commercial or product/service designations in
connection with the website and such Services.
1.6. CheshireWeb.Com reserves the
right to monitor its systems electronically and to access and disclose any
information as permitted or required by any law, regulation or other
governmental request to operate its systems properly, to protect itself or its
accountholders or for any other reason it in good faith deems necessary.
CheshireWeb.Com will fully cooperate with law enforcement authorities in
investigating suspected lawbreakers and reserves the right to report to law
enforcement any suspected illegal activity it becomes aware of. It is not
CheshireWeb.Com's intention that its Services or facilities be used in contravention
of the Communications Decency Act of 1996 (the "CDA") or any other applicable
law.
1.7. You agree to comply with the requirements of the CDA and the
Digital Millennium Copyright Act (the "DMCA") and acknowledge that CheshireWeb.Com
is a "service provider" under the DMCA and is therefore immune from liability
under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, CheshireWeb.Com
will accommodate standard technical measures used to identify and protect
copyrighted works, and, as further described herein, CheshireWeb.Com has a policy of
terminating accountholders who are repeat copyright infringers.
1.8.
Websites are unmodified forums containing the personal opinions and other
expressions of the persons who post entries on a wide range of topics. Neither
the content of websites located on CheshireWeb.Com's servers nor the links to other
websites are screened, approved, reviewed or endorsed by CheshireWeb.Com.
CheshireWeb.Com is not a publisher of any of the content of websites, or of any
content that may be available through the links to and from them, and is acting
solely as an Internet web-hosting service provider. The text and other material
on such websites are the opinion of the specific author and are not
CheshireWeb.Com's statements of advice, opinion or information.
2. Limited
Warranty; Limitation of Liability; Indemnification
Limited Warranty. You
acknowledge that the Services are provided "as is." Neither CheshireWeb.Com, nor any
of its employees or agents, warrants that the Services will be uninterrupted,
error free or free from viruses or other harmful components. CheshireWeb.Com is not
responsible for and hereby disclaims any warranties, either expressed or
implied, regarding the quality, accuracy, or validity of the data and/or
completeness, noninfringement, merchantability or fitness for a particular
purpose of information available on its SERVERS or residing on or passing
through its interconnecting networks. Use of information obtained from or
through the Services is at your risk. Under no circumstances will CheshireWeb.Com be
liable to you or any other person for any loss or damage caused by your reliance
on information available on its servers or obtained through the Services.
2.2. Limitation of Liability. In no event shall CheshireWeb.Com be liable for
any indirect, incidental, punitive or other consequential damages (including,
without limitation, lost profits and damages related to corruption or deletion
of website contents) arising out of or in relation to this aggreement or your use
or inability to use CheshireWeb.Com'S services (including, but not limited to,
inoperability of CheshireWeb.Com's servers), regardless of the form of action,
whether in contract, tort (including negligence) or otherwise, even if
CheshireWeb.Com has been advised of the possibility of such damages. In no event
shall CheshireWeb.Com'S maximum liability exceed the total amount paid by you to
CheshireWeb.Com for the services during the prior twelve (12) months. To the extent
applicable state law does not allow the limitaion of liability for
consequential OR incidental damages, CheshireWeb.Com's liability is limited to the
extent permitted by law.
2.3. Indemnification. You agree to indemnify,
defend and hold CheshireWeb.Com and its affiliates, directors, officers, employees
and agents harmless from and against any liabilities, losses, damages or costs,
including reasonable attorneys' fees, resulting from any third-party claim,
action, dispute or demand related to your use of the Services, your violation of
any of the provisions of this Agreement or from your placement or transmission
of any materials or content onto CheshireWeb.Com's servers. Such liabilities may
include, but are not limited to, those arising from the following: (a) with
respect to your business, (i) infringement or misappropriation of any
intellectual property rights; (ii) defamation, libel, slander, obscenity,
pornography, or violation of the rights of privacy or publicity; or (iii)
spamming, or any other offensive, harassing or illegal conduct or violation of
the acceptable uses described herein or anti-spam policy; (b) any damage or
destruction to CheshireWeb.Com's equipment or to any other accountholder, which
damage is caused by or otherwise results from acts or omissions by you, your
representative(s) or your designees; (c) any personal injury or property damage
arising out of your activities related to the Services, unless such injury or
property damage is caused solely by CheshireWeb.Com's gross negligence or willful
misconduct; and (d) any other damage arising from your equipment or your
business.
3. Payment of Fees
CheshireWeb.Com will send an email
notice of fee increases 30 days before such increases take effect. A listing of
current monthly, quarterly, semi-annual and annual fees (each, a "Payment
Interval") may be found at http://www.cheshireweb.com/packages.html.
3.2. You agree to
provide CheshireWeb.Com with accurate and complete billing information, including
your legal name, address, telephone number, e-mail address and to update this
information immediately if any change occurs. Payments must be submitted in
advance of receiving the Services.
3.3. If you secure your account with a
credit card, you acknowledge that CheshireWeb.Com will bill your credit card prior
to the Payment Interval you have chosen. You authorize automatic billing by
CheshireWeb.Com on an on-going basis during the term of this Agreement.
3.4. Delinquent accounts are those that remain unpaid at the beginning of the next
Payment Interval. The Services will be suspended if your account is delinquent
for 10 days, and CheshireWeb.Com will insert a message at your website indicating
your suspension that visitors to your website will see. Notwithstanding any
other rights CheshireWeb.Com may have in this Agreement, all of your website
contents will be destroyed if your account is delinquent for 20 days.
CheshireWeb.Com accounts continue to accrue charges while they are delinquent or if
the Services are suspended.
3.5. You acknowledge responsibility for your
account until payment in full is made.
4. CheshireWeb.Com's Right to Terminate Agreement
- 4.1. CheshireWeb.Com reserves the right to suspend or terminate
the Services to you and remove or prevent access to any material from your
website at any time, without prior notice or liability, for any conduct that
CheshireWeb.Com, in its sole discretion, believes violates this Agreement or is
otherwise harmful to CheshireWeb.Com's interests or the interests of other
accountholders.
- 4.2. CheshireWeb.Com also reserves the right to comply with the
take-down provisions of the DMCA and to seek injunctive, declaratory,
interpleader or other judicial or equitable relief (and, pending such action, to
suspend all access to your website) if any third-party claim is made that your
website content or use violates any of the acceptable uses or your obligations
or representations described in this Agreement.
5. Cancellation of
Accounts
You may cancel your CheshireWeb.Com account by emailing a
cancellation request to billing@CheshireWeb.com. Charges for canceling accounts are
not prorated on a monthly basis.
5.2. All CheshireWeb.Com accounts must be paid
in full before the cancellation will be considered complete.
5.3. If your
account is suspended or terminated for any reason permitted by this Agreement,
CheshireWeb.Com may, at its sole discretion, permanently delete your website
contents from CheshireWeb.Com servers, and CheshireWeb.Com will not be able to reopen or
restore such content.
6. Arbitration; Governing Law
Except for
CheshireWeb.Com's compliance with take-down provisions of the DMCA or injunctive or
other equitable actions initiated by CheshireWeb.Com pursuant to Section 4(b), if
any controversy or dispute arises in connection with this Agreement, the
Services or your use of CheshireWeb.Com's servers, such controversy or dispute shall
first be presented for resolution by CheshireWeb.Com and you. If no resolution is
reached within 7 days thereafter, then such controversy or dispute shall be
resolved by binding arbitration in Concord, New Hampshire, under the then-current
rules of commercial arbitration of the American Arbitration Association. Each
party shall select an arbitrator with expertise in computer law and the
Internet, and these two arbitrators shall select the third arbitrator with such
expertise. The validity, terms, performance and enforcement of this Agreement
shall be governed and construed by its provisions and in accordance with the laws
of the State of New Hampshire (without regard to conflicts of laws principles).
6.2 You hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the state and federal courts located in Concord, New Hampshire for any action, suit or proceeding arising out of or relating to
Section 4(b) of this Agreement and the arbitration contemplated by this Section
6.
7. Miscellaneous
You may not assign your rights and obligations under
this Agreement without the prior written consent of CheshireWeb.Com, which may be
withheld at CheshireWeb.Com's discretion. Nothing contained in this Agreement shall
be construed as creating any agency, partnership, or other form of joint
enterprise between the parties. The failure of CheshireWeb.Com to require your
performance of any provision hereof shall not affect the right to require such
performance thereafter; nor shall the waiver by CheshireWeb.Com of a breach of any
provision hereof be taken or held to be a waiver of the provision itself. Any
action for any claim arising under, or in connection with, this Agreement must
be commenced by you within one year after the alleged cause of action has accrued
or after the date of termination of this Agreement, whichever is earlier. In the
event that any provision of this Agreement is deemed unenforceable or invalid,
such unenforceability or invalidity shall not affect the remainder of this
Agreement. Such provision may be amended or replaced with one that is valid and
enforceable and which achieves, to the extent possible, the original objectives
and intent of the parties as reflected in the original provision. No provision
of this Agreement may be amended or modified by you except by means of a written
document signed or expressly assented to by CheshireWeb.Com. All terms and
conditions of this Agreement that should by their nature survive termination of
this Agreement shall so survive. This Agreement and the Online Order form,
together with all amendments or modifications to any of them, constitute the
complete and exclusive agreement between you and CheshireWeb.Com and supersede and
govern all prior proposals, agreements, or other communications.
8.
Acceptable Uses
Use and Misuse of the Services. All complaints of
abuse, violation and misuse of the Services, whether described in this Section 4
or otherwise, shall be investigated promptly. If you are not sure if your
actions will be an abuse, violation or misuse, please ask first:
info@CheshireWeb.Com. You are responsible for all use of your website, with or
without your knowledge or consent. You agree to use the Services only for lawful
purposes, in compliance with all applicable laws. Illegality includes, but is
not limited to, drug dealing; attempting without authorization to access a
computer system; pirating (distributing copyrighted material in violation of
copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling;
schemes to defraud; sending a message or having
content that is obscene, lewd, lascivious, filthy, or indecent with intent to
annoy, abuse, threaten, or harass another person; threatening bodily harm or
damage to individuals or groups; violating U.S. export restrictions; stalking;
or violating other state or federal law, such as the Electronic Communications
Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act.
Linking to illegal material is also prohibited. When CheshireWeb.Com becomes aware
of possible violations of this Agreement, CheshireWeb.Com may initiate an
investigation that may include gathering information from you and the
complaining party, if any, and examination of material on CheshireWeb.Com's servers.
CheshireWeb.Com, in its sole discretion, will determine what action will be taken in
response to a violation on a case-by-case basis. Violations of this Agreement
could subject you to criminal or civil liability. By accepting this agreement,
you agree to waive and hold CheshireWeb.Com harmless from any claims relating to any
action taken by CheshireWeb.Com as part of its investigation of a suspected violation
of this agreement or as a result of its conclusion that a violation of the agreement has occurred. This means that you cannot sue or recover any damages
whatsoever from CheshireWeb.Com as a result of CheshireWeb.Com's decision to remove
material from its servers, warn you, suspend or terminate your account, or take any other action during the investigation of a suspected violation or as a result of CheshireWeb.Com's conclusion that a violation has occurred. This waiver applies to all violations described in this agreement.
8.2. Use and Misuse of
Materials. Materials in the public domain (e.g., images, text, and programs) may
be downloaded or uploaded using the Services. You may also re-distribute
materials in the public domain. You assume all risks regarding the determination
of whether the material is in the public domain. You are prohibited from
storing, distributing or transmitting any unlawful material through the
Services. Examples of unlawful material include, but are not limited to, threats
of physical harm, child pornography, and copyrighted, trademarked and other
proprietary material used without proper authorization. You may not post, upload
or otherwise distribute copyrighted material on CheshireWeb.Com's servers without
the consent of the copyright holder. Unacceptable uses of website content also
include the presence of the following programs or the activities associated with
them, regardless of whether or not any actual intrusion results in the
corruption or loss of data: server broadcast messages or any message sent on an
intrusive basis to any directly or indirectly attached network; attempts to
circumvent any user authentication or security of host, network, or account;
accessing data not intended for user; probing the security of any network;
spawning dozens of processes; port scans, ping floods, packet spoofing, and
forging router information; denial of service attacks, sniffers, flooding,
spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of
viruses; and IRC bots, such as eggdrop or BitchX. CheshireWeb.Com supports free
speech on the Internet and will not suspend or cancel your account simply
because it disagrees with your views expressed at your website. However,
examples of unacceptable activities include posting private information about a
person without his or her consent, defaming a person or business, and knowingly
making available code that will have a deleterious effect on third-party
computers. Where there are allegations that your on-line activity has violated
the legal rights of a third party, CheshireWeb.Com will not substitute itself for a
court of law in deciding tort claims raised by the third party.
8.3. Email
Use. Unacceptable affronts to netiquette and unacceptable activities include,
but are not limited to, the following: spamming (sending unsolicited advertising
to those with which you have no existing business relationship and posting
off-topic advertising in newsgroups); spoofing (using a return email address
that is not the valid reply address of the sender or sending an email message
that does not contain enough information to enable the recipient to identify
you); passive spamming (promoting a website hosted by CheshireWeb.Com by spamming
from some other source);trolling (posting controversial messages in newsgroups
to generate responses); mailbombing (inundating a user with email without any
serious intent to correspond or sending large or multiple files to a user);
generating a higher volume of outgoing mail than a normal user (over 10% of
available system resources); propagating chain letters; and subscribing someone
else to an electronic mailing list without that person's permission. A message
is considered unsolicited if it is posted in violation of a newsgroup charter or
sent to a recipient who has not requested the message. Making an email address
available to the public does not constitute a request to receive messages.
Distribution of mass emailing programs is also prohibited. All recipients on a
mailing list must have personally subscribed. Mailing lists may not be used to
distribute unsolicited email. If you are repeatedly mailbombed or attract such
behavior, the Services will be terminated. You should not send email to any user
who does not wish to receive it, either at CheshireWeb.Com or elsewhere. CheshireWeb.Com
recognizes that email is an informal medium; however, you must refrain from
sending further email to a user after receiving a request to stop. You may not
alter the headers of email messages to disguise their identity or to prevent
users from responding to the messages. CheshireWeb.Com may disclose the usernames of
accounts responsible for forged email messages to system administrators or users
requesting the information. Violations of the CheshireWeb.Com policies outlined
herein can sometimes result in massive numbers of email responses. If you
receive so much email that CheshireWeb.Com resources are affected, CheshireWeb.Com staff
may shut down your mailbox.
8.4. System Security. You are prohibited from
utilizing the Services to compromise the security of system resources or
accounts on servers at CheshireWeb.Com or at any other site. Use or distribution of
tools designed for compromising security or containing viruses or trojans are
prohibited. Examples of these tools include, but are not limited to, password
guessing programs, cracking tools or network probing tools. If you are involved
in violations of system security, CheshireWeb.Com reserves the right to release all
usernames of users involved in such violations to system administrators at other
sites in order to assist them in resolving security incidents. CheshireWeb.Com will
also fully cooperate with law enforcement authorities in investigating suspected
lawbreakers.
8.5. System Resources. System abuse includes any use of
CheshireWeb.Com resources that disrupts the normal use of its servers or services
for others. Examples of system abuse include running excessive numbers of
processes or consuming excessive amounts of CPU time, memory or disk space. Any
usage of 10% or more of CheshireWeb.Com's system resources is an undue burden on
CheshireWeb.Com's system and is unacceptable. If your usage ever exceeds 10% of
system resources, your account may be terminated immediately and without prior
notice. Usage of scripts or other utilities to direct pointed domain names to
subdirectories is not permitted and is grounds for termination. Further, running
programs in the background on a CheshireWeb.Com server without CheshireWeb.Com's prior
written authorization, or running chat rooms, Internet Relay Chat, IRC bots,
mailing lists that send more then 1,000 emails a day and the like are not
acceptable uses of CheshireWeb.Com's servers.
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