This Services Agreement (the "Agreement") contains the complete terms and conditions which govern your subscription of Web hosting, e-Commerce and other Internet-related services provided by TheHosted.com (the "Services"). As used in this Agreement, "TheHosted" means TheHosted.com and "Client", "you", or "your" means you. By clicking on the "Submit Order" button, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the TheHosted site. As referred to in this Agreement, "Site" refers to a World Wide Web site and "TheHosted Site" refers to the Site located at the URL http://www.thehosted.com, or any other successor Sites owned or maintained by TheHosted.
1. APPROPRIATE USE OF THE SERVICES.
TheHosted provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.
• Client Content. Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client - or through Client by a third party - to any TheHosted server in connection with Client's use of the Services which:
1. Violate any state, federal or foreign laws or regulations;
2. Infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of TheHosted or any third party;
3. Are defamatory, slanderous or trade libelous;
4. Are threatening or harassing;
5. Are discriminatory based on gender, race, age or promotes hate
6. Violate any TheHosted policy posted on the TheHosted Site including, but not limited to, our Acceptable Use Policy (includes Adult Content Policy), UCE (SPAM) Policy, and CGI Abuse Policy.
7. Contain viruses or other computer programming defects which result in damage to TheHosted or any third party.
• Bandwidth. Client may occupy only the amount of disk space on the TheHosted Server and utilize no more than the network bandwidth that is allotted by TheHosted. Additional fees, specified in the Virtual Host plans page, will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
• No "SPAM". Client shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices at TheHosted, or otherwise, that mentions or reference any domain hosted on TheHosted servers or parked on TheHosted DNS servers. NOTE: THIS POLICY APPLIES TO VIRTUAL SERVER ACCOUNTS, RESELLERS AND THEIR RESOLD ACCOUNTS, DEDICATED SERVER CUSTOMERS, AND ALL DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVER. (Violators will be fined! Refer to our UCE (SPAM) Policy).
• Licensed Software Only. Client agrees to use only properly licensed third party software in connection with Client's use of the Services.
• Reactivation of Server. Client agrees to pay $50 USD reactivation fee for any server suspended due to an abuse report.
• Back-Up Files. Client will have the ability to reinstate files which are automatically archived by TheHosted; however, TheHosted does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, Client is responsible for making back-up files in connection with its use of the Services. Backup capability is available through the Client’s Control Panel.
• Service Downtime: ("Service Downtime") is any unplanned interruption in Service Availability during which Client is unable to access the services that is determined to have been caused by a problem in TheHosted Network as confirmed by TheHosted. TheHosted provides direct support and expertise in the software it provides, any unplanned outages due to software failure are the direct responsibility of the software publisher and not of TheHosted.
• Termination. TheHosted reserves the right to refuse service to anyone. TheHosted, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behavior by a third party using the Services, please contact abuse@thehosted.com.
2. PAYMENT OBLIGATIONS:
• Service Fees. By the Anniversary date of signup of each month, TheHosted shall either (i) debit Client's credit card (where such information is provided by Client) or (ii) deliver by e-mail or regular mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month. Where an invoice is delivered to Client, Client shall remit payment to TheHosted by no later than the specified payment due date. TheHosted shall be entitled to immediately terminate this Agreement for Client's failure to make timely payments to TheHosted. Certain services carry a set-up fee charged by TheHosted to Client that must be paid by Client in order to have use of the Services. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to TheHosted and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid TheHosted for such Services, refunds will be issued for any unused full month portions of the Services upon Clients request. Therefore, if Client's account is cancelled at any point during the one (1) year term, Client will be entitled to a refund for the months remaining after notice given by the 25th of the preceding month.
• Refunds and Disputes. All payments to TheHosted are non-refundable. This includes all setup fees and subsequent charges regardless of usage. All billing disputes must be reported within 30 days from the day when the Subscriber(s) receives such bill. A dispute raised by the Subscriber(s) with his credit card company unilaterally without first contacting TheHosted, which in TheHosted's sole discretion is a valid charge under the provision of TOS and AUP, you agree to pay TheHosted an “administrative fee” of not less then $75.00 and not more then $200.00. If the client should file a dispute/chargeback we reserve the right to suspend service until the matter is resolved or terminate the account indefinitely.
• Domain Names. If Client chooses to register a domain name(s) through TheHosted, Client acknowledges and agrees that Client will pay a registration fee(s) to register the domain name(s) with the applicable domain name registrar. TheHosted does not offer refunds for domain name registrations for any reason, including misspelling of the domain name.
3. CLIENT LIABILITY AND INDEMNIFICATION:
• The parties agree that in no event shall TheHosted be liable to any third party for Client's breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless TheHosted from any and all expenses, losses, liabilities, damages or third party claims resulting from Client's breach or alleged breach of any Client obligations set forth hereunder.
4. TERM, TERMINATION & REINSTATEMENT:
• Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month basis unless otherwise specified by separate agreement (the "Term") unless terminated earlier pursuant to the provisions of this Section 4. Either party will have the right to terminate this Agreement upon notice to the other party. If Client is terminating this Agreement, Client must follow instructions for cancellation provided on the Server Cancellation Information page. The essence of this page states that Client must contact the TheHosted to receive a cancellation number, which Client shall retain as proof of termination, and all cancellation requests must be received by the Twenty-Fifth (25th) of the respective month of cancellation. Any other attempt by Client to cancel this Agreement by written or e-mail notice shall be void. Sections 3 - 8 shall survive termination or expiration of this Agreement.
• If Client terminates its account, Client shall be allowed to re-instate Client's use of the Services within Seven (7) business days of cancellation. Client shall pay a fee of Fifty Dollars ($50) prior to any re-instatement of Client's account. Once payment has been received, Client's account will be activated within Forty-Eight (48) business hours. TheHosted will maintain an archival copy of Client's Web site for Seven (7) days after TheHosted receives notice of cancellation. Thereafter, Client will need to place a new order if it wishes to subscribe to the Services.
5. TAXES:
Client will pay and indemnify and hold TheHosted harmless from any and all taxes associated with or arising from Client's use of the Services, including any penalties and interest and any costs associated with the collection or withholding there of.
6. DISCLAIMER OF WARRANTY:
THE SERVICES, THE TheHosted SITE, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE TheHosted SITE, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. TheHosted DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FOREGOING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TheHosted SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1)THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
7. LIMITATION OF LIABILITY:
IN NO EVENT SHALL TheHosted BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE TheHosted SITE OR ANY TheHosted PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL TheHosted’S CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN FIVE HUNDRED DOLLARS ($500 US).
