HostAndStream.com, Inc.®/US Data Vault, Business Services Master Agreement
This HostAndStream.com, Inc.®/US Data Vault Business Services
Master Agreement (this "Contract") is made and entered into as of
______________, 200__, by and between the undersigned HostAndStream.com, Inc.®/US Data Vault (“H&S/USDV”), located at Box 33,
Nashville, TN 37202, Attention: Marc Shaffer (the “H&S/USDV Contact”); and
the undersigned _______________________________________ company (hereinafter,
“Customer”) located at ________________________________________________________________________________________________,
Attention: ___________________ (the “Customer Contact”).
TERMS AND CONDITIONS
The terms and
conditions applicable to this Contract shall be those stated within this
Contract or its Attachment(s).
SERVICES AND PRICE
"Services"
as used herein shall be those Internets or managed business services ordered by
Customer from H&S/USDV under service orders (“Orders”) submitted by
Customer and accepted by H&S/USDV pursuant to this Contract. If this Contract provides for specific
pricing, including any applicable discount schedules, for any such Services,
such pricing or discounts shall be set forth in the Attachment(s) to this
Contract. In any event, the specific
pricing applicable to any particular Services shall be as set forth in the
applicable Order(s) for such Services, which are intended to be consistent with
any pricing or discount schedules attached hereto unless agreed between the
parties with respect to a particular Order.
TERMS OF PAYMENT
The
terms of payment for the Services are as set forth in the Terms and Conditions
or in the applicable Order(s).
NOTICES
All
notices under this Contract will be in writing and will be deemed to have been
duly given if delivered personally or by courier service, faxed or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at the addresses set forth herein.
All notices under this Contract that are addressed as provided
herein: (a) if delivered personally or
by courier service, will be deemed given upon delivery, (b) if delivered by
facsimile, will be deemed given when confirmed and (c) if delivered by mail in
the manner described above, will be deemed given on the fifth (5th)
business day after the day it is deposited in a regular depository of the
United States mail. Either party may
change its address or respective contact for notification purposes by giving
notice to the other of the new address or designee and the date upon which such
change will become effective.
INCORPORATION BY REFERENCE
The Terms and Conditions and all Attachments hereto and thereto, are integral parts of this Contract and are fully incorporated herein by this reference.
ENTIRE AGREEMENT
This
Contract, and any Orders placed hereunder, shall constitute the entire
agreement between H&S/USDV and the Customer relating to this Contract and
the Services performed hereunder and may not be modified or amended other than
by a written instrument executed by both parties.
IN
WITNESS WHEREOF, HostAndStream.com, Inc.®/US Data Vault and Customer have caused this Contract to be
executed and delivered by their duly authorized representatives, effective upon
execution by Customer and acceptance by HostAndStream.com, Inc.®/US Data Vault.
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Customer:
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Accepted by HostAndStream.com, Inc.®/US Data Vault |
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By: |
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By: |
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Name: |
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Name: |
Marc
Shaffer |
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(Print or
Type) |
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(Print or
Type) |
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Title: |
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Title: |
President |
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Date: |
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Date: |
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HostAndStream.com,
Inc.®/US Data Vault’s Acceptable Use Policy ("AUP") is
provided to give our customers and users a clear understanding of what H&S/USDV
expects of them while using the network. All users of HostAndStream.com,
Inc.®/US Data Vault’s Internet services: those who access some of our Networks
but do not have accounts, as well as those who pay a service fee to subscribe
to the Services, must comply with this AUP and our TOS (Terms of Service).
Use of HostAndStream.com,
Inc. / US Data Vault Services constitutes acceptance and agreement
to HostAndStream.com,
Inc. / US Data Vault's AUP AND TOS (Terms of Service).
We support the uncensored
flow of information and ideas over the Internet and do not actively monitor
subscriber activity under normal circumstances. Similarly, we do not exercise editorial
control over the content of any web site, data or e-mail transmission,
newsgroups, or other material created or accessible over or through the networks,
except for certain proprietary Web sites.
However, in accordance with our TOS (Terms of Service), we may remove
any materials that, in our sole discretion, may be illegal, may subject us to
liability, or which may violate this AUP. H&S/USDV may cooperate with legal authorities and/or
third parties in the investigation of any suspected or alleged crime or civil
wrongdoing. Your violation of this AUP
may result in the suspension or immediate termination of either your H&S/USDV
account or other actions as detailed in Section 3 WITHOUT PRIOR NOTICE.
This document is intended
to provide a basic understand of H&S/USDV's Acceptable Use Policy. The following are guidelines for the
establishment and enforcement of H&S/USDV's AUP:
·
Ensure
reliable service to our customers
·
Ensure
security and privacy of our systems and network, as well as the networks and
systems of others
·
Comply
with existing laws
·
Maintain
our reputation as a responsible service provider
·
Encourage
responsible use of the Internet and discourage activities which reduce the
usability and value of Internet services
·
Preserve
the value of Internet resources as a conduit for free expression and exchange
of information
·
Preserve
the privacy and security of individual users
H&S/USDV intends to provide its customers access to everything the
Internet has to offer. While H&S/USDV is firmly
committed to the principles of free speech, certain activities that may be
damaging to the resources of both H&S/USDV and the Internet and cannot be permitted under the guise of
free speech. The resources of H&S/USDV and the
Internet are limited, and abuse of these resources by one user has a negative
impact on the entire community.
We do not routinely
monitor the activity of accounts except for measurements of system utilization
and the preparation of billing records. However,
in our efforts to promote good citizenship within the Internet community, we
will respond appropriately if we become aware of inappropriate use of our network.
You may not use the H&S/USDV network to publish material which H&S/USDV
determines, at its sole discretion, to
be unlawful, indecent or objectionable. For purposes of this policy,
"material" refers to all forms of communications including narrative
descriptions, graphics (including photographs, illustrations, images, drawings and
logos), malicious executable programs, video recordings, and audio recordings.
If an H&S/USDV account is
used to violate our AUP or our TOS, we reserve the right to terminate your service without notice. We prefer to advise customers of inappropriate
behavior and any pending necessary corrective action; however, flagrant or
multiple violations of the AUP will result in immediate termination of service.
Our failure to enforce this policy, for
whatever reason, shall not be construed as a waiver of our right to do so at
any time.
As a member of our
network community, you must use your Internet access responsibly. If you have any questions regarding this
policy, please contact us at abuse@hostandstream.com.
VIOLATIONS OF HostAndStream.com, Inc.®/US Data Vault’s ACCEPTABLE USE POLICY
The following constitute actionable
violations of this AUP:
0.1.
Illegal use: H&S/USDV's network may not be used for illegal purposes,
or in support of illegal activities. H&S/USDV
reserves the right to cooperate with legal authorities and/or injured third
parties in the investigation of any suspected crime or civil wrongdoing.
1.2.
Harm to minors: Use of the H&S/USDV network to harm, or attempt to harm, minors in
any way, including, but not limited to child pornography.
2.3.
Threats: Use of the H&S/USDV network to transmit any material (by e-mail,
uploading, posting or otherwise) that threatens or encourages bodily harm or
destruction of property.
3.4.
Harassment: Use of the H&S/USDV network to transmit any material (by e-mail, uploading,
posting or otherwise) that harasses another.
4.5.
Fraudulent activity: Use of H&S/USDV network to make fraudulent offers to sell or
buy products, items, or services, or to advance any type of financial scam such
as "pyramid schemes," "Ponzi schemes," and "chain
letters".
5.6.
Forgery or
impersonation: Adding,
removing or modifying identifying network header information in an effort to
deceive or mislead is prohibited. Attempting
to impersonate any person by using forged headers or other identifying information
is prohibited. The use of anonymous
re-mailers or nicknames does not constitute impersonation.
6.7.
Unsolicited
commercial e-mail / Unsolicited bulk e-mail (SPAM) Use of the H&S/USDV network to transmit any unsolicited commercial
or unsolicited bulk e-mail is expressly prohibited. Violations of this type will result in the
immediate termination of the offending H&S/USDV account.
IMPORTANT NOTICE:
BEGINNING IMMEDIATELY, anyone hosting services that support spammers
or cause any of our IP space to be listed in any of the various Spam Databases
will have their server immediately removed from our network,
and will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection
and agree to allow us access to confirm that all material has been COMPLETELY removed. Violations may result in immediate and
permanent removal from our network without notice to the customer. Any one guilty of a second violation WILL be immediately and permanently removed
from our network without notice.
7.8.
E-mail / News
Bombing:
Malicious intent to impede another person's use of electronic mail services or
news will result in the immediate termination of the offending H&S/USDV
account.
8.9.
E-mail / Message
Forging: Forging
any message header, in part or whole, of any electronic transmission,
originating or passing through the H&S/USDV network is in violation of this AUP.
9.10. Usenet
SPAMing:
H&S/USDV has a zero tolerance policy for the use of its
network for the posting of messages or commercial advertisements, which violate
the rules, regulations, FAQ or charter of any newsgroups or mailing list. Commercial messages that are appropriate under
the rules of a newsgroup or mailing list or that are solicited by the
recipients are permitted.
10.11.
Unauthorized access:
Use of the H&S/USDV network to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of H&S/USDV 's or another entity's computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data, is expressly prohibited and the offending H&S/USDV account is subject to immediate termination.
11.12.
Copyright or
trademark infringement:
Use
of the H&S/USDV network to transmit any material (by e-mail,
uploading, posting or otherwise) that infringes any copyright, trademark,
patent, trade secret or other proprietary rights of any third party, including,
but not limited to, the unauthorized copying of copyrighted material, the
digitization and distribution of photographs from magazines, books, or other
copyrighted sources, and the unauthorized transmittal of copyrighted music or software.
12.13.
Collection of
personal data: Use of
the H&S/USDV network to collect, or attempt to collect,
personal information about third parties without their knowledge or consent,
including any attempt to Phish for information are prohibited.
13.14.
Network disruptions and unfriendly activity:
Use of the H&S/USDV network for any activity that affects the ability of
other people or systems to use H&S/USDV Networks or the Internet. This includes "denial of service"
(DOS) attacks against another network host or individual user. Interference with or disruption of other network
users, services or equipment is prohibited. It is the Member's responsibility to ensure
that their network is configured in a secure manner. A Subscriber may not, through action or
inaction, allow others to use their network for illegal or inappropriate
actions. A Subscriber may not permit
their network, through action or inaction, to be configured in such a way that
gives a third party the capability to use their network in an illegal or
inappropriate manner. Unauthorized entry
and/or use of another company and/or individual's computer system will result
in immediate account termination. H&S/USDV
will not tolerate any subscriber attempting to access the accounts of others,
or penetrate security measures of other systems, whether or not the intrusion
results in corruption or loss of data.
14.15.
Fraud: Involves a knowing misrepresentation or
misleading statement, writing or activity made with the intent that the person
receiving it will act upon it.
15.16.
Infringement of
Copyright, Patent, Trademark, Trade Secret, or Intellectual Property Right: Distribution and/or posting of copyrighted or
the aforementioned infringements will not be tolerated.
16.17.
Distribution of
Viruses:
Intentional distributions of software that attempts to and/or causes damage,
harassment, or annoyance to persons, data, and/or computer systems are
prohibited. Such an offense will result in the immediate termination of the
offending account.
17.18.
Inappropriate Use of
Software: Use of
software or any device that would facilitate a continued connection, i.e.
pinging, while using H&S/USDV network could result in suspension service.
18.19.
Third Party
Accountability: H&S/USDV
subscribers will be held responsible and accountable for any activity by third
parties, using their account; that violates guidelines created within the
Acceptable Use Policy.
19.20.
Violation of HostAndStream® / US Data Vault Virtual
Accounts: It is
absolutely forbidden to host or promote pornographic content or IRC servers on
Virtual Server Accounts. Virtual Server
Accounts found hosting this material will be subject to immediate cancellation
without refund.
Security
You are responsible for any
misuse of your account, even if an employee, friend, family member or guest
committed the inappropriate activity.
Therefore, you must take steps to ensure that others do not gain
unauthorized access to your account. In
addition, you may not use your account to breach security of another account or
attempt to gain unauthorized access to another network or server.
a.
Your
password provides access to your account. It is your responsibility to keep your
password secure.
b.
Sharing
your password and account access with unauthorized users is prohibited. You should take care to prevent others from
using your account since you will be held responsible for such use.
c.
Attempting
to obtain another user's account password is strictly prohibited, and may
result in termination of service.
d.
You must adopt
adequate security measures to prevent or minimize unauthorized use of your
account.
e.
You may not
attempt to circumvent user authentication or security of any host, network or
account. This includes, but is not
limited to, accessing data not intended for you, logging into or making use of
a server or account you are not expressly authorized to access, or probing the
security of other networks. Use or
distribution of tools designed for compromising security is prohibited. Examples of these tools include, but are not
limited to, password guessing programs, cracking tools or network probing or
Phishing tools.
f.
You may not
attempt to interfere with service to any user, host or network ("denial of
service attacks"). This includes,
but is not limited to "flooding" of networks, deliberate attempts to
overload a service, and attempts to "crash" a host.
g.
Users who
violate systems or network security may incur criminal or civil liability. H&S/USDV will cooperate fully with
investigations of violations of systems or network security at other sites,
including cooperating with law enforcement authorities in the investigation of
suspected criminal violations.
REPORTING VIOLATIONS OF HostAndStream® / US Data Vault AUP
H&S/USDV
requests that anyone who believes that there is a violation of this AUP direct
the information to the Abuse Department at abuse@hostandstream.com
If
available, please provide the following information:
a.
The
IP address used to commit the alleged violation
b.
The date and time of the alleged violation, including the
time zone or offset from GMT
c.
Evidence of the alleged violation
d.
E-mail with full header information provides all of the
above, as do system log files. Other
situations will require different methods of providing the above information. H&S/USDV may take any one or more of the
following actions in response to complaints:
e.
Issue written
or verbal warnings
f.
Suspend the
Member's newsgroup posting privileges
g.
Suspend
the Member's account
h.
Terminate
the Member's account
i.
Bill
the Member for administrative costs and/or reactivation charges
j.
Bring
legal action to enjoin violations and/or to collect damages, if any, cause by
violations
REVISIONS TO
THIS ACCEPTABLE USE POLICY
H&S/USDV reserves the
right to revise, amend, or modify this AUP, our TOS and our other policies,
prices and agreements at any time and in any manner. Notice of any revision, amendment, or
modification will be posted in accordance with our TOS.
TOS - Terms of Service AGREEMENT
HostAndStream® / US Data Vault. ("H&S/USDV ")
agrees to furnish services to the Subscriber, subject to the following TOS.
Use of H&S/USDV Networks constitutes acceptance and
agreement to H&S/USDV’s AUP as well as H&S/USDV’s TOS (Terms of
Service).
All provisions of this
contract are subject to the TOS (Terms of Service) and AUP (Acceptable Use
Policy) of H&S/USDV, Inc. The AUP
may be changed from time to time at the discretion of the Company. Subscriber understands that changes to the TOS
or AUP by the Company shall not be grounds for early contract termination or
non-payment.
This Agreement shall be
construed in all respects in accordance with the laws of the state of
Tennessee, county of Davidson, applicable to contracts enforceable in that
state. Venue will be Davidson County,
Tennessee.
1)
Disclosure to Law Enforcement:
The
AUP specifically prohibits the use of our network for illegal activities. Therefore, Subscriber agrees that the Company
may disclose any and all subscriber information including assigned IP numbers,
account history, account use, etc. to any law enforcement agent who makes a
written request without further consent or notification to the Subscriber. In addition H&S/USDV shall have the right
to terminate all such Subscriber services set forth in this Agreement.
2)
Service Rates:
Subscriber
acknowledges that the nature of the service furnished and the initial rates and
charges have been communicated to Subscriber. Subscriber is aware that the Company may
prospectively change the specified rates and charges from time to time. Any promotional offer is contingent upon
Company achieving and maintaining its cost of service goals including but not
limited to rates charged to company by its suppliers.
3)
Payment:
Establishment
of this service is dependent upon receipt by the Company of advance payment of
stated charges. Subsequent payments are
due on the anniversary date of the month for that next month's service. All accounts and services provided by H&S/USDV
are subject to all applicable taxes. 100%
of any setup fees are also subject to applicable taxes. The above applies to all accounts and services
provided by H&S/USDV.
4)
Payments and Fees:
If used for payment, credit cards that are
declined for any reason are subject to a $5.00 declination fee. Service will be interrupted on accounts that
reach 10 days past due. Service
interrupted for nonpayment is subject to a $300 reconnect charge. Accounts not paid by due date are subject to a late charges of one and one-half percent (1.5%) per
month, or the highest amount permitted by applicable law, whichever is less,
and shall be due and payable with respect to such payment.
Accounts
that are not collectable by H&S/USDV may be turned over to an outside
collection agency for collection. If
your account is turned over for collection, you agree to pay the company a
"Processing and Collection" Fee of not less than $50 or more than $250. If you desire to cancel your account, please
follow the proper procedure to do this as outlined in this TOS.
5)
Refunds and Disputes:
All payments to HostAndStream® / US Data Vault are
nonrefundable. This includes the one time setup fee and
subsequent charges regardless of usage.
All overcharges or billing disputes must be reported within 60 days of
the time the dispute occurred. If you
dispute a charge to your credit card issuer that, in H&S/USDV’s sole
discretion is a valid charge under the provisions of the TOS and/or AUP, you
agree to pay H&S/USDV an "Administrative Fee" of not less than
$100.
6)
Failure to Pay:
The
Company may temporarily deny service or terminate this Agreement upon the
failure of Subscriber to pay charges when due. Such termination or denial will not relieve
Subscriber of responsibility for the payment of all accrued charges, plus
reasonable interest and any collection fees.
7)
Limitation of Warranties and Liability; Disclaimer of
Warranties.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. NEITHER HostAndStream, INC.®/US Data Vault NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES HostAndStream, INC.®/US Data Vault OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. IT IS FURTHER UNDERSTOOD THAT IN NO WAY IS HOSTANDSTREAM, INC.®/US Data VAULT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS RESPONSIBLE FOR ANY LOSS OF CLIENT DATA. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER HOSTANDSTREAM, INC.®/US Data Vault NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. CUSTOMER AGREES THAT CUSTOMER WILL NOT IN ANY WAY HOLD HOSTANDSTREAM, INC.®/US Data Vault RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM HOSTANDSTREAM, INC.®/US Data Vault MAY CONTRACT TO OPERATE VARIOUS AREAS ON THE SERVICE).
8)
Support Boundaries:
H&S/USDV
provides email based 24 x 7 x 365 Customer Support to all H&S / USDV
subscribers. H&S/USDV also provides live
24 x 7 x 365 Technical Support to all
USDV subscribers and those H&S Hosting accounts billed in excess of
$100/month. We limit our technical
support to our area of expertise. The
following are our guidelines when providing support: H&S/USDV provides support
related to your service or virtual site physical function. H&S/USDV does not offer tech support for
application specific issues such as CGI programming, HTML or any other such
issue. H&S/USDV does not provide
technical support for YOUR customers. If
you can email, we encourage you to email techsupport@hostandstream.com for
assistance. If you are able to get
online and have other questions, the answers may be on our home page at http://www.hostandstream.com/support/
- and we encourage you to check there first.
Lastly, the Help files in the program you are using may have the answer
to your question so please do investigate these resources before calling tech
support.
9)
SPAM and Unsolicited Commercial Email (UCE):
H&S/USDV
takes a zero tolerance approach to the sending of Unsolicited Commercial Email
(UCE) or SPAM over our network. Very
simply this means that customers of H&S/USDV may not use or permit others
to use our network to transact in UCE.
Customers of H&S/USDV may not host, or permit hosting of, sites or
information that is advertised by UCE from other networks. Violations of this policy carry severe
penalties, including termination of service.
a.
Violation
of H&S/USDV’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of
our SPAM policy, H&S/USDV will initiate an immediate investigation (within
48 hours of notification). During the
investigation, H&S/USDV may restrict customer access to the network to
prevent further violations. If a
customer is found to be in violation of our SPAM policy, H&S/USDV may, at
its sole discretion, restrict, suspend or terminate customer's account. Further, H&S/USDV reserves the right to
pursue civil remedies for any costs associated with the investigation of a
substantiated policy violation. H&S/USDV
will notify law enforcement officials if the violation is believed to be a
criminal offense.
b.
First
violations of this policy will result in an "Administrative Fee" of
$250 and your account will be reviewed for possible immediate termination. A second violation will result in an
"Administrative Fee" of $500 and
the immediate termination of your account.
Users who violate this policy agree that in addition to these
"Administrative" penalties, they will pay "Research Fees"
not to exceed $175 per hour that H&S/USDV personnel must spend to
investigate the matter. PLEASE, DO NOT SPAM from your account.
c.
As
our Customers are ultimately responsible for the actions of their clients over
the H&S/USDV network, it is advisable that Customers develop similar, or
stricter, AUP and TOS policies for their clients.
10)
Network:
a.
IP Address Ownership:
If
H&S/USDV assigns Customer an Internet Protocol address for Customer's use,
the right to use that Internet Protocol address shall belong only to H&S/USDV,
and Customer shall have no right to use that Internet Protocol address except
as permitted by H&S/USDV in its sole discretion in connection with the
Services, during the term of this Agreement.
H&S/USDV shall maintain and control ownership of all Internet Protocol
numbers and addresses that may be assigned to Customer by H&S/USDV, and H&S/USDV
reserves the right to change or remove any and all such Internet Protocol
numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by
ARIN's new policies. These new policies
state that use of IP addresses for IP based virtual hosts will not be accepted
as justification for new IP addresses.
What this means to you is that you MUST
use name-based hosting where possible.
We will periodically review IP address usage, and if we find that
clients are using IP addresses where name-based hosting could be used, we will
revoke authorization to use those IP addresses that could be used with
name-based hosting.
b.
Bandwidth and Disk Usage:
H&S/USDV
will monitor Customer's bandwidth and disk usage. H&S/USDV shall have the right to take
corrective action (additional billing for overage) if Customer's bandwidth or
disk usage exceeds the initial Agreed Usage.
In certain circumstances, such corrective action could include any or
all of the following: Assessment of
additional charges, disconnection or discontinuance of any and all Services, or
termination of this Agreement. Which
actions may be taken is in H&S/USDV’s sole and absolute discretion. If H&S/USDV takes ANY corrective action
under this section, Customer shall not be entitled to a refund of any fees paid
in advance prior to such action.
c.
System and Network Security:
Users
are prohibited from violating or attempting to violate the security of the H&S/USDV
Network. Violations of system or network
security may result in civil or criminal liability. H&S/USDV will investigate occurrences,
which may involve such violations and may involve, and cooperate with, law
enforcement authorities in prosecuting Users who are involved in such
violations. These violations include,
without limitation:
a.
Accessing
data not intended for such User or logging into a server or account, which such
User is not authorized to access.
b.
Attempting
to probe, scan or test the vulnerability of a system or network or to breach
security or authentication measures without proper authorization.
c.
Attempting
to interfere with service to any user, host or network, including, without
limitation, via means of overloading, "flooding", "mail
bombing" or "crashing".
d.
Forging
any TCP/IP packet header or any part of the header information in any e-mail or
newsgroup posting.
e.
Taking
any action in order to obtain services to which such User is not entitled.
11)
Notification of Violation:
a)
H&S/USDV
is under no duty to look at each customer's or user's activities to determine
if a violation of the AUP has occurred, nor do we assume any responsibility
through our AUP to monitor or police Internet-related activities.
b)
First
violation: Any User, which H&S/USDV determines to have violated any element
of this Acceptable Use Policy, shall receive an email, warning them of the
violation. The service may be subject at
H&S/USDV’s discretion to a temporary suspension pending a User's agreement
in writing, to refrain from any further violations.
c)
Second
Violation: Users that H&S/USDV determines to have committed a second
violation of any element of this Acceptable Use Policy shall be subject to
immediate suspension or termination of service without further notice.
d)
We
reserve the right, to drop the section of IP space involved in Spam or
Denial-of-Service complaints if it is clear that the offending activity is
causing great harm to parties on the Internet.
In particular, if open relays are on your network or a customer's
network, or if denial of service attacks are originating from your
network. In certain rare cases, we may
have to do this before attempting to contact you. If we do this, we will contact you as soon as
is feasible.
12)
Suspension of Service or Cancellation:
H&S/USDV
reserves the right to suspend network access to any customer if in the judgment
of the H&S/USDV network administrators the customer's server is the source
or target of the violation of any of the other terms of the AUP or for any
other reason which H&S/USDV deems prudent.
If inappropriate activity is detected, all accounts of the Customer in
question will be deactivated until an investigation is complete. Prior notification to the Customer is not
assured. In extreme cases, law enforcement
will be contacted regarding the activity. The customer will not be credited for the time
the customer's accesses were suspended.
13) Right
to Amend:
H&S/USDV reserves the right to amend its policies and prices
at any time. All Sub-Networks, resellers
and managed servers of H&S/USDV must adhere to the above policies. Failure to follow any term or condition will
be grounds for immediate Cancellation.
You will be held responsible for the actions of your clients in the
matter described on these Terms and conditions. Therefore, it is in your best interest to
implement similar or stricter Terms and conditions, otherwise called your AUP.
14)
Indemnification:
H&S/USDV wishes to emphasize that in
agreeing to the H&S/USDV Acceptable Use Policy (AUP) and Terms of Service (TOS),
customer indemnifies H&S/USDV for any violation of the Acceptable Use
Policy (AUP) and Terms of Service (TOS) that results in loss to H&S/USDV or
the bringing of any claim against H&S/USDV by any third-party. This means that if H&S/USDV is sued
because of a customer or customer's activity, the customer will pay any damages
awarded against H&S/USDV, plus all costs and attorney's fees. If
promptly notified in writing of any action brought against Customer based on a
claim that the Services infringe a United States patent, copyright, trademark,
or other intellectual property right, H&S/USDV will defend that action at
its expense and will pay any and all fees, costs or damages that may be finally
awarded in that action and/or a settlement resulting from it (provided that
Customer shall permit H&S/USDV to control the defense of such action and
shall not make any compromise, admission of liability or settlement or take any
other action impairing the defense of such claim without H&S/USDV's prior
written approval). If a final injunction
is obtained against Customer prohibiting usage of the Services by reason of
infringement of a United States patent, copyright, trademark, or other
intellectual property right, H&S/USDV will, at its option, either:
(1)
At the Customers
expense; procure the right for Customer to continue using the Network or
(2)
Direct
Customer to cease using the Services.
In the latter event, the Services shall terminate
immediately. Customer will indemnify and
save harmless H&S/USDV from and against all loss, liability, damage, and
expense, including but not limited to all reasonable counsel fees, due to
claims for infringement of patents, copyright, trademark, or other intellectual
property rights, or due to any other claims or causes of action by third
parties of any nature whatsoever, arising from the use in connection with the
Services of equipment, software or information not provided by H&S/USDV, or
otherwise relating to or arising out of Customer’s use of the Services.
15)
Disclaimer of Liability:
H&S/USDV shall not be responsible for the use made of
the Services by Customer, its authorized users, or any other customer or third
party. Without limiting the generality
of the foregoing, H&S/USDV shall not be liable to Customer or any of Customer’s
users for any lost data or profits or other consequential damages, even if H&S/USDV
has been advised of the possibility of such damages; any claim or other action
against Customer by any third party (except as set forth in the section below
on infringement); any act or omission of any other entity furnishing products
and services which are used by Customer in connection with the Services or for
failure of any products or services provided by Customer; or any damages or
losses caused by the fault or negligence of Customer or Customer’s failure to
perform Customer’s responsibilities.
16)
Termination and Default.
a)
H&S/USDV may, at its sole discretion, terminate any
Customer Order and discontinue Customer’s access to and use of the Services,
if:
i. Customer fails to pay any then due amount within 7 days
after written notice that the same is delinquent; or
ii. Customer breaches any of the terms, conditions, obligations,
or representations contained herein; or
iii. Customer becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization, or liquidation proceeding, makes an
assignment for the benefit of creditors, or admits in writing its inability to
pay debts when due, or
iv. Customer’s equipment or use of the Networks interferes with
the Services or any other user.
In the event of a default by Customer as specified in this section, H&S/USDV shall also be authorized to retain all payments made hereunder and to recover the full, unpaid balance of the charges applicable to the remainder of the then current minimum term of Customer’s Order for the Services. In addition, if H&S/USDV reasonably determines that the continuation of the Services has become impractical or unfeasible for any technical, legal, regulatory or other reason; H&S/USDV may terminate the Services at any time. H&S/USDV will, in such event, provide Customer with at least thirty (30) days prior notice of such termination if reasonably practical.
b) If Customer has elected a specific term for the Services and then cancels its Services or any portion thereof (or has its Services or any portion thereof terminated for default as provided above) prior to the expiration of such minimum term, Customer shall be obligated to pay H&S/USDV a termination charge equal to the amount (if any) specified in the applicable Order; otherwise the termination charge shall be equal to 100% of the total monthly charges (other than variable usage charges) which would have become due for the remainder of the scheduled minimum term if such cancellation had not occurred. Customer shall pay such termination charge to H&S/USDV within thirty (30) days after such cancellation.
17)
Account Cancellation:
All
requests for canceling accounts must be made with at least 30 days notice but
not more than 60 days prior by email to customerservice@hostandstream.com
with “Cancel” in the subject line or in writing by mail with at least 30 days
notice but not more than 60 days prior written notice and sent to H&S/USDV
Attn: Cancellations, P.O. Box 33, Nashville, TN 37202 or you may call
615-596-4898. You must have all account
information to cancel and have all accounts paid current.
18)
Miscellaneous Provisions:
You
must provide us with, and keep current, good contact information for you. E-mail, fax, mailing address and telephone
contacts are used, in that order of preference.
a)
A
waiver by the Company of any breach of any provision of this Agreement by
Subscriber shall not operate as or be construed as a continuing or subsequent waiver
thereof or as a waiver of any breach of any other provision thereof.
b)
Subscriber
shall not transfer or assign this Agreement without the prior written consent
of the Company. Company may assign Agreement at anytime without consent from or
notice to Subscriber. Company reserves
right to cancel customers rights under this contract at anytime without further
obligation.
c)
H&S/USDV
takes no responsibility for any material input by others and not posted to the H&S/USDV
Network by H&S/USDV. H&S/USDV is
not responsible for the content of any other service linked to the H&S/USDV
Network; links are provided as Internet navigation tools only. H&S/USDV disclaims any responsibility for
any such inappropriate use and any liability to any person or party for any other
person or party's violation of this policy.
d)
H&S/USDV
is not responsible for any damages your business may suffer. H&S/USDV does not make implied or written
warranties for any of our services. H&S/USDV
denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from
delays, non-deliveries, wrong delivery, and any and all network interruptions
caused by H&S/USDV.
21) Responsibility
for Content:
You,
as an H&S/USDV customer are solely responsible for the legality of content you
store or transmit on H&S/USDV network and servers.
Order Summary
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Service Type: |
Equipment Provided By: |
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Disk Space: |
Data Transfer Included: |
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Amount of Rack Space Needed
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Additional Data Transfer
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Order Summary |
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Order Summary Form
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Pricing Information |
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Installation
Charges |
Recurring
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Install Charge |
Monthly Recurring Charge |
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$0.00 |
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Total
Install Charge |
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$0.00 |
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Contract Term |
Expedite
Install Date
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Additional Terms and Conditions |
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IMPORTANT |
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CUSTOMER HAS READ AND AGREES TO BE BOUND BY THIS ORDER, INCLUDING
THE APPLICABLE ORDER DETAIL FORM(S) AND THE SERVICES TERMS AND CONDITIONS AND RATE SCHEDULES AND CONDITIONS,
and all applicable acceptable use policies, ALL OF WHICH REPLACE AND SUPERSEDE any other negotiations,
agreements, proposals and communications (oral or written) RELATING TO THE SERVICES LISTED OR DESCRIBED ON THIS
ORDER and shall prevail over any additional or conflicting terms in any purchase order, invoice, acknowledgment
or other similar document issued by Customer. |