Colloquy Web Services
Hosting Agreement, Terms, Conditions, & Policies
THE PERSON SIGNING THIS DOCUMENT REPRESENTS THAT HE OR SHE HAS COMPLETE AND UNCONDITIONAL AUTHORITY TO ENTER INTO THE AGREEMENT (AS DEFINED BELOW) ON BEHALF OF THE SUBSCRIBER (CLIENT). THIS PERSON ALSO UNDERTAKES THE RESPONSIBILITY TO INFORM ALL EMPLOYEES AND AGENTS THAT WILL USE COLLOQUY WEB SERVICES'S SERVICES, OF THE CONTENTS OF THIS AGREEMENT.
This Agreement establishes the terms and conditions upon which Colloquy Web Services, hereinafter referred to as PROVIDER, agrees to provide website hosting and related services, hereinafter referred to as the Services, to the subscriber, hereinafter referred to as CLIENT. In consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Colloquy Web Services and the Subscriber agree as follows.
1. ACCOUNT INFORMATION AND ACCEPTANCE
CLIENT acknowledges that all information provided by CLIENT is true and correct to the best of CLIENT's knowledge. CLIENT agrees that the act of signing and submitting an application form for website hosting or using PROVIDER's website hosting services constitutes acceptance of all terms and conditions associated with the services applied for.
This Agreement comprises the entire agreement between the PROVIDER and the CLIENT, and supersedes any prior agreements between the parties with respect to the subject matter of the Agreement. CLIENT agrees to pay and authorizes PROVIDER to charge all fees due using the payment information provided by CLIENT at the time of application.
2. CLIENT RESPONSIBILITIES
CLIENT will use PROVIDER's services in a manner consistent with all applicable local, provincial, state, and federal regulations and laws.
CLIENT agrees, for itself and for its Users (Users for the purposes of this agreement is defined as its employees and agents):
(i). except as otherwise provided herein, CLIENT and its Users will maintain all password and login information, and other information about CLIENT's Account, as strictly confidential and subject to no less protection than the protection afforded Subscriber's own confidential infor mation. For security purposes, PROVIDER recommends that CLIENT change its password(s) often. At no time should CLIENT ever respond to an online request for a password;
(ii). CLIENT will not permit any person or entity other than its own employees and agents, to use the Services;
3. ALTERATION / REVISION OF AGREEMENT
PROVIDER may revise the terms of this Agreement at any time, and such revision shall be effective ten (10) days after notice of the proposed revision is posted on PROVIDER's website or is sent to customer via e-mail to the address on file in PROVIDER's customer database. CLIENT agrees to review the Agreement periodically to be aware of such revisions. If any such revision is unacceptable to CLIENT, its sole remedy is to cancel/terminate website hosting services in accordance with this Agreement. CLIENT's continued use of PROVIDER's services following the effective date of any such revision to the Agreement shall be conclusively deemed as your acceptance of all such revisions.
4. DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY
PROVIDER's service is provided on an "as is, as available" basis. PROVIDER gives no warranty, expressed or implied, for the PROVIDER's services, including without limitation, any warranty of merchantability or warranty of fitness for a particular purpose. Any damages incurred by CLIENT due to disruption of service by PROVIDER or its providers shall be expressly limited to the fees paid by CLIENT to PROVIDER for services and shall under no circumstances include reimbursement for losses of income or other consequential damages claimed by CLIENT.
IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will PROVIDER's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by CLIENT for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
CLIENT and its users recognize that PROVIDER does not offer any rating systems, filtering software or procedures to help CLIENT screen out language or images in email that CLIENT or its Users do not wish to receive through the Services. PROVIDER exercises no controls whatsoever over the content of information passing through its network or equipment. Disputes may arise between CLIENT or its Users and other individuals or entities or between CLIENT and PROVIDER related to such content. Such disputes could involve, among other things, the use or misuse of domain names, the infringement of copyrights, trademarks or other rights in intellectual property, defamation, fraud, and the use or misuse of information. CLIENT and its Users agree that all claims, disputes or wrongdoing that result from, or which are related in any way to, the content of information passing through PROVIDER's network or equipment are CLIENT's sole and exclusive responsibility. Use of the Internet and of the information available through it is at CLIENT's own risk.
CLIENT agrees that it shall defend, indemnify, save and hold PROVIDER harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against PROVIDER, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by CLIENT, it's agents,
employees or assigns. CLIENT agrees to defend, indemnify and hold PROVIDER harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with a PROVIDER server; (2) any material supplied by CLIENT infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement.
6. ASSUMED COMPETENCY
Effective use of PROVIDER's services presumes a certain degree of knowledge and skill on the part of the CLIENT. For example, it is presumed that CLIENT possesses at least a rudimentary knowledge of Internet-related processes and software applications such as e-mail, File Transfer Protocol (FTP), and web-browsing. Creating and publishing a website on PROVIDER's servers will require some knowledge of either HTML programming, the use of HTML editors, or the contracting of the PROVIDER or a third-party service provider. Certain advanced applications may require a certain level of competence with programming applications. PROVIDER will not be held responsible for CLIENT's inability to use PROVIDER's services due to CLIENT's lack of the requisite knowledge and skills.
PROVIDER relies on e-mail as the primary means of notifying CLIENTs of important system news, problems with CLIENTs' accounts or usage of those accounts, billing problems, etc. Any notifications will be e-mailed to CLIENT domain's primary e-mail address and/or to the contact e-mail address provided by CLIENT upon application for services. CLIENT agrees to monitor these e-mail addresses on a regular basis and to respond promptly, if required, to any notifications. CLIENT agrees to notify PROVIDER of any changes to CLIENT's physical or e-mail address, telephone numbers, etc.
8. UP-TIME GUARANTEE
No provider can guarantee 100% server uptime. Servers and systems must be brought down (offline) at times for routine maintenance and upgrades to ensure that CLIENT's website will run and perform optimally. However, PROVIDER strives to keep such service interruptions to a minimum, and, if possible, to give CLIENT advance notice of scheduled maintenance routines. An uptime rate of nearly 100% is generally maintained. Of course, there will be times that CLIENT will not be able to reach the server due to traffic conditions on the Internet, problems occurring at PROVIDER's upstream providers facilities, or due to hardware or software component failure. Both of these conditions are entirely out of PROVIDER's control. However, if the problem occurs with PROVIDER's immediate upstream providers, PROVIDER will do our utmost to have these providers correct the anomaly as soon as possible.
9. PROHIBITED USES
The following content and activities may not be displayed or promoted by CLIENT nor associated in any way with CLIENT's account or PROVIDER's services. PROVIDER shall be the sole arbiter as to what constitutes violation of this provision.
(i). Copyrighted material used without permission.
(ii). Material protected by trade secret or other statute.
(iii). Material or activities judged by PROVIDER to be threatening, obscene, disparaging, or hate-related.
(iv). Pornography, nudity, erotica, and sex-related merchandising, including sites that may infer sexual content, or link to adult content elsewhere.
(v). Content or conduct that makes possible or promotes any illegal or prohibited activity. Content that may be damaging to PROVIDER's servers or to any other server on the Internet.
(vi). Pirated software (warez).
(vii). IRC, IRC Bots, IRC BNC, etc.
(viii). Unsolicited or bulk e-mail (SPAM) or e-mail harvesting software or services.
(ix). Illegally distributed MP3 or other copywritten media.
(x). Links or reference to any of the above.
CLIENT and its Users are also expressly prohibited from:
(i). Undertaking any activity which harasses, annoys, or otherwise interferes with any person's, group's, or organization's use or enjoyment of the Internet experience.
(ii). Forging or misrepresenting email message headers, whether in whole or in part, to mask the originator of the message.
(iii), Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as "hacking").
(iv). Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.
(v). Engaging in activities that are determined to be illegal, including advertising, trans mitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.
(vi). Engaging in activities, whether lawful or unlawful, that PROVIDER determines to be harm ful to its operations, goodwill, or customer relations.
(vii). posting or transmitting any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind;
(viii). uploading, posting, publishing, transmitting, reproducing, or distributing in any way, infor mation, software, or other intellectual property owned by a third party without obtaining permis sion of such third party;
(ix). uploading, posting, publishing, transmitting, reproducing, or distributing in any way, viruses or other computer code designed to alter or destroy software or data without the knowledge of the person using such computer code, software or data.
10. THIRD PARTY SOFTWARE AND SPECIAL APPLICATIONS
PROVIDER allows clients to install third party software (database programs, cgi scripts, etc.) providing the following conditions are met: 1) Any software installed must not require root access to install, start, or run. 2) Any software must not disrupt other subscribers' use and enjoyment of the server. This might occur if: a). scripts use too much memory; b). scripts use too many CPU processes; or c). scripts interfere with users' e-mail. Clients are required to obtain the prior approval of PROVIDER prior to installing any third party software. This approval may not be permanent. If a script is found to disrupt the server in any of the ways mentioned above, PROVIDER reserves the right to temporarily disable the script or the virtual server until the problem can be resolved. PROVIDER reserves the right to disable and/or remove any software/content that our system administrators have found may represent a security risk to the server.
Cron access may be enabled on a case-by-case review basis. Cron applications or "jobs" shall be limited to one per day, and must be scheduled to run between midnight and 5 a.m. To request crontab access, e-mail email@example.com with a description of the application you wish to run. Service fees may apply to Cron set-up.
Background daemons in general are prohibited. PROVIDER will consider requests to allow these applications on a case-by-case review basis. If allowed, extra charges will be assessed based on resources and system maintenance needed.
IRC, IRC bots, BNC, or MUDs may not be operated on PROVIDER's servers.
CLIENT is free to use any Chat Room software desired provided that source code for each script is provided to and approved by PROVIDER before use. PROVIDER reserves the right to disable any chat room that adversely affects normal server operation.
11. UNSOLICITED E-MAIL (SPAM)
PROVIDER's servers may not be the source, intermediary, or destination address involved in the transmission of unsolicited bulk e-mail (UBE), spam, off-topic newsgroup posts, flames, or "mail bombs," or for the known distribution of computer viruses. CLIENT's domain may not be referenced or traceable in any way as a result of any of the above.
Spam is generally defined as any unsolicited e-mail, post, or facsimile in a newsgroup, e-mail, fax, or other electronic medium. Any UBE (commercial or not) is also considered spam for the purposes of this policy. Mass and unsolicited are not concurrent conditions for spam. One and/or the other is sufficient. In the medium of newsgroups, spam is considered to be any off-topic posting and/or any
identical posting to multiple newsgroups. The use of "ghost sites" (web pages setup on ISPs that allow spamming, that directly or indirectly reference customers to domains or IP addresses hosted by PROVIDER in mass e-mailings are also prohibited. Distribution of email to lists purchased from third parties is also considered spam for the purposes of this provision.
If CLIENT operates a service that regularly sends to a bulk solicited e-mail list such as an online newsletter subscription, CLIENT agrees to provide valid, functioning list removal instructions with each and every email distributed to recipients on the list and to validate the list on an frequent basis to ensure that recipients wish to continue their subscription. PROVIDER also recommends that all opt-in list subscriptions be validated by e-mail upon original subscription. Distribution of e-mail to a solicited or opt-in list without valid removal instructions or periodic list validation constitutes spam and is a violation of the anti-spam provisions of this agreement. If CLIENT requires assistance or advice with respect to list validation or emailing procedures to opt-in lists, they should contact provider in advance of any email transmissions to its list.
Any spam complaints received about CLIENT domains are addressed seriously. After investigation, if it is deemed by PROVIDER that spamming practices have indeed been utilized on PROVIDER's servers, PROVIDER reserves the right to terminate a domain account immediately with no refund and to seek reimbursement of investigation costs. CLIENT expressly accepts PROVIDER's right to charge these investigation costs and agrees to their assessment and payment. PROVIDER reserves the sole right to determine what constitutes a violation of this provision.
12. SERVER ABUSE
Any attempts to undermine or cause harm to any server is strictly prohibited. This includes, but is not limited to attempting to gain access to password-protected files other than those of the CLIENT, attempting to gain unauthorized access to other accounts on the server, or anything that causes server malfunction. Failure to comply is subject to immediate account deactivation without refund. Please note that while CGI/PERL scripts and/or MySQL code can unintentionally cause server malfunction, PROVIDER will make the final determination if the code was maliciously programmed. If the code was programmed incorrectly but not out of apparently malicious intent, PROVIDER will disable the program, but not cancel CLIENT's account.
13. TRAFFIC QUOTA
CLIENT account receives a monthly traffic/bandwidth allocation according to the type of account applied for. PROVIDER will make every reasonable effort to notify CLIENT of projected traffic overages prior to any action being taken to disable CLIENT's account. However, PROVIDER reserves the right to disable CLIENT's account without prior warning due to traffic in excess of the account allocation.
14. TECHNICAL SUPPORT
While PROVIDER will make every reasonable effort to assist CLIENT with all of its questions, there are some instances when PROVIDER may not be able to provide technical assistance. CLIENT also recognizes that some technical support services are only available on a pay-for-service basis and are not included as part of the basic website hosting subscription fee. Although we cannot guarantee it,
we try to help customers with general questions regarding HTML, CGI programming and other general areas of the Internet. We do not provide technical support for any third party software (i.e. scripts downloaded from the Internet) or compatibility including HTML Browsers, Perl scripts, java scripts, or Microsoft Frontpage. For help in this area, contact the creator or distributor of the software. It is NOT possible for PROVIDER to support all of the countless third party programs and configurations that are available to web developers and users today. To assist CLIENT in knowing PROVIDER support boundaries, CLIENT should review the PROVIDER's fee schedule. PROVIDER offers telephone support to all hosting subscribers. CLIENT agrees not to abuse this resource. Abuse includes placing multiple repeat calls without leaving a message or leaving multiple messages in the same 24-hour period (when CLIENT receives PROVIDER's voice-mail message system). Telephone support is not available and shall not be used for non-supported items as described above. PROVIDER shall have sole authority to determine violations of this policy.
15. RESALE OF WEB SPACE
CLIENT may NOT subdivide and give away or resell web space and other services on CLIENT's account to other users without first obtaining the permission of PROVIDER. CLIENT recognizes that such permission is rarely granted.
16. DOMAIN NAME REGISTRATION
PROVIDER will provide reasonable assistance to CLIENT in the area of domain name registration and modification in respect of all domain names hosted on PROVIDER's server. Reasonable assistance may include submission of registration or modification requests to appropriate domain name registration agencies and/or supplying CLIENT with the necessary information to effect registration or modification of CLIENT domain. PROVIDER will not, under any circumstances, make changes to any part of a domain name record except nameserver and technical contact information relating to the pointing of CLIENT's domain name(s) to PROVIDER's servers. CLIENT is responsible for payment of all applicable domain name registration and renewal fees. In the event that CLIENT wishes to cancel its website hosting with PROVIDER and modify name server records or technical contact information to recognize the new hosting provider, CLIENT recognizes that these services, if required, are only available on a pay for service basis.
17. CANCELLATION POLICY
PROVIDER reserves the right to refuse or cancel service at PROVIDER's sole discretion, with or without reason, with or without warning.
CLIENT bears all responsibility for ensuring effective cancellation of its account. This responsibility includes providing effective and verifiable notification to PROVIDER of CLIENT's desire to cancel its account or specific services rendered thereunder. PROVIDER will act immediately to implement CLIENT's cancellation notice, providing the terms of this cancellation policy have been followed. PROVIDER must receive CLIENT cancellation at least 24 hours prior to the anniversary date of CLIENT's website hosting agreement. Refunds will not be provided by PROVIDER to CLIENT for partial hosting periods. Accounts may be cancelled by e-mailing (firstname.lastname@example.org) or telephoning (515-268-3162) PROVIDER's sales department. All e-mail cancellations will be confirmed by PROVIDER within 24 hours of receipt. If CLIENT
does not receive confirmation, cancellation cannot be assumed to have been effected. It is CLIENT's responsibility to ensure that a cancellation confirmation is forthcoming from PROVIDER. The purpose of requiring confirmation of cancellation is to protect both CLIENT and PROVIDER from inaccurate claims of cancellation and notification. If CLIENT has a balance due at the time of cancellation, this balance must be paid in full. Cancellation does not absolve CLIENT of any outstanding financial obligations. PROVIDER does not monitor account usage or the status of domain name records on PROVIDER's servers. If CLIENT transfers CLIENT domain without notifying PROVIDER of a desire to cancel the account, CLIENT will continue to be charged/billed. PROVIDER's services are independent of account usage and domain name records, and are still in effect whether CLIENT domain is pointing to PROVIDER's nameserver or to some other nameserver. PROVIDER reserves the right, in its sole discretion, to suspend (temporarily disable) or cancel the CLIENT's account(s) without further warning upon any indication of delinquent payments, or if the terms and conditions outlined herein are violated, or if CLIENT's account causes any kind of network or server problem and/or disturbances. PROVIDER is not responsible for lost files or data due to cancellation, suspension or account termination.
PROVIDER implements industry-standard technology for providing a secure and encrypted environment, where necessary, for information protection. There is no guarantee that any information on the Internet is absolutely secure and may never be destroyed. CLIENT agrees to indemnify and hold PROVIDER harmless in case of information loss or loss of privacy. PROVIDER is not responsible for any damages arising from CLIENT's use of or by CLIENT's inability to use the server, web hosting packages, or any other services for any reason. PROVIDER shall make every reasonable effort to protect and backup data for CLIENT on a regular basis. PROVIDER is not responsible for CLIENT's files. CLIENT is solely responsible for its own independent backup of data stored on PROVIDER's server and network. PROVIDER is not liable for and does not guarantee the protection or privacy of electronic mail or information transferred through the Internet or any other public network.
PROVIDER maintains control and ownership of any and all IP numbers and addresses that may be assigned to CLIENT and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. CLIENT shall keep the rights of ownership and use of the domain name even if client changes providers.
20. FEES AND HOSTING PERIOD
Current rates and charges for PROVIDER's services may be obtained from PROVIDER's website at www.colloquywebservices.com or by calling (515) 268-3162. PROVIDER reserves the right to change its fees and billing methods at any time effective thirty(30) days after an online posting on its website and/or an electronic mail notice to CLIENT. If any such change is unacceptable to CLIENT, CLIENT's sole remedy will be to cancel hosting services as provided for in this Agreement. Continued use of PROVIDER's services following the effective date shall be deemed acceptance of such change.
All service agreements are for a term of either 1 year, quarterly, or one month from the signing date on the web hosting application. In the event that CLIENT wishes to cancel hosting services before the
applicable 1, 3, or 12 month anniversary date of the subscription, CLIENT is responsible for the remainder of the contract. CLIENT recognizes that one year and quarterly hosting subscriptions are discounted and that in exchange for this discount, the CLIENT forgoes more frequent cancellation options that would be available under a month to month hosting plan.
All checks should be made payable to Colloquy Web Services, and mailed to:
Colloquy Web Services
4329 Lincoln Swing, #14
Ames, IA 50014
CLIENT agrees to pay a $25 fee for each returned check. Hosting payments plus the returned check fee must be received by PROVIDER prior to expiration of the current hosting period to avoid account suspension or cancellation.
Accounts that pay by credit card are automatically billed within 3-5 days (prior or after) the anniversary date or the beginning of each new hosting period. In the event that credit card payments are declined by the issuing financial institution, PROVIDER will make every reasonable effort to contact CLIENT to request another form of payment. If PROVIDER is unable to contact CLIENT in this event, CLIENT's account will be considered past due as described below. CLIENT agrees to notify PROVIDER of any changes to CLIENT's physical and e-mail addresses, telephone numbers, credit card numbers, and credit card expiration dates.
If payment is not received by the due date, PROVIDER will send a notification/reminder via e-mail to CLIENT's primary contact e-mail address. If CLIENT's account is not paid in full within 10 days after the hosting period start date, CLIENT's account may be disabled. The account will be reactivated within 10 days of the disablement, upon receipt of payment plus a $10.00 administrative/account reactivation fee. If payment is not received within 30 days after account disablement, the account will be cancelled, and all files associated with the account will be deleted from PROVIDER's servers. PROVIDER may (or may not) choose to waive the enforcement of this policy if CLIENT contacts PROVIDER prior to the payment due date to discuss alternative payment methods.
21. PRIVACY NOTE
PROVIDER will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with its policy or applicable law. When PROVIDER becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software, or take any other action it deems appropriate. PROVIDER will not intentionally monitor private electronic mail messages sent or received by CLIENT unless required to do so by law. PROVIDER may, however, disclose information, including but not limited to, information concerning CLIENT, a transmission made using our network, or a website, in order to comply with a court order. PROVIDER assumes no obligation to inform the CLIENT that information has been provided. Finally, PROVIDER may disclose CLIENT information or information transmitted over its network where necessary to protect PROVIDER and others from harm, or where such disclosure is necessary to the proper operation of the system.
CLIENT agrees to submit to the jurisdiction of the applicable municipal, county, state or federal court of PROVIDER's physical residence (The state of Iowa) for any litigation, mediation, or arbitration which may arise from any dispute concerning any of the provisions herein. Controlling law shall be that of the State of PROVIDER's residence. The prevailing party in any litigation hereunder shall be entitled to recover its reasonable attorney's fees and court costs.
If any aspect of the Agreement is held to be unenforceable, such aspect will be performed only to the extent necessary and in such a manner to preserve to the greatest extent possible to effect the original intent of the parties. The remainder of the Agreement will remain in full force and effect.
24. ASSIGNMENT AND BINDING
This Agreement shall be binding on CLIENT and PROVIDER and their respective successors and assigns. CLIENT may not assign this Agreement without the prior written consent of PROVIDER, which consent will not be unreasonably withheld.
25. FORCE MAJEURE
PROVIDER shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
All notices to PROVIDER hereunder shall be given to:
Colloquy Web Services
4329 Lincoln Swing, #14
Ames, IA 50014
Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable courier addressed to the addresses in this Agreement. Notice shall be deemed to be given upon the earlier of actual receipt, or three (3) days after it has been sent, properly addressed and with postage prepaid.