TERMS
OF SERVICE
This Terms of Service Policy ("Policy") is
a binding agreement between Host N Post (HostNPost.com),
("we" or "us") and you [hereinafter
"you" or "customer(s)"]. You understand
and agree that your use of and access to the Internet
hosting and related services ("Services")
and the network and host computers ("Network")
that we, our affiliates and/or subcontractors operate,
are conditioned upon your full compliance with the terms
of this Policy.
We
may modify this Policy as well as modify Services. Your
continued use of the Services after we post the modified
Policy indicates your acceptance of the modified Policy.
Therefore, you are encouraged to review this Policy
on a regular basis, which is located at: http://www.hostnpost.com/policy.html
Right
of Termination
If
any customer account is involved in a violation of this
Policy, or if we reasonably anticipate such a violation,
we reserve the right, at our option, to suspend or terminate
use of and access to the Services and Network without
notice. The key contributing factors affecting our actions
taken on Policy violations include, but are not limited
to, protection of our customers and our resources, provision
of quality service to our customers, compliance with
applicable law, and the protection of our reputation
as a service provider.
Re-Establishing
an Account
In
the event that an account is deactivated or cancelled
as a result of any activities in violation of this Policy,
the account may be subject to set-up fees, reactivation
charges, deposit requirements and/or other restrictions
to be determined by us if such account is permitted
to be re-activated or re-established.
Services
Agreement, Utilization and Account Sharing
Your
use of the Services is also subject to other applicable
agreements, including, without limitation, the Services
Agreement. Bandwidth and disk utilization will be computed
in accordance with those relevant agreements. In the
event we determine that any account is exceeding the
relevant bandwidth or disk utilization, the customer
will generally be notified by e-mail. If the excess
use continues after such notification, the customer
may be requested to upgrade the account under the Services
Agreement or to modify the activity creating the excess
use, or otherwise risk account termination.
Your
Responsibilities
By
accessing and using the Services and Network, you represent,
covenant and warrant that all information, data and
materials hosted on and/or transmitted through the Network
do not and will not violate any law or infringe upon
any legal rights. Furthermore, you agree not to engage,
or assist any others to engage, in using the Service
and/or Network in connection with any illegal purpose
including, but no limited to:
(i)
Attempting to interfere with or compromise the operation
of the Network in whole or part, with any of the equipment
comprising the Network, or intercepting, redirecting
or interfering with messages or data intended for transfer
to other parties;
(ii)
Accessing without authorization any computers, accounts
or networks or attempting to penetrate security measures
(a/k/a "hacking"), and any other activity
that might be used to attempt to penetrate a system
(i.e., stealth scans or other information gathering
activity).
(iii)
Engaging in any activity, hosting or transmitting data
or other material that infringes upon or misappropriates
intellectual property rights, including, without limitation,
copyright, trademark, trade secret, patent, privacy
or publicity, moral rights, or other personal or proprietary
rights. This also includes deleting or falsifying any
author ownership attributions, legal notices or designations
of origin in a file that you host or transmit;
(iv)
Permitting use of the Network in any manner to transmit
or store libelous, slanderous or defamatory statements
or otherwise statements that constitute false or misleading
indications of origin or statements of fact;
(v)
Permitting use of the Network as a means to threaten,
harass, stalk, or otherwise violate the legal rights
of others;
(vi)
Hosting or transmitting, or distributing information
regarding the creation and sending of, files that contain
a virus, worm, Trojan Horse, pinging, floating, mail
bombs or denial of service attacks;
(vii)
Hosting, publishing, advertising, storing, posting,
distributing or disseminating child pornography, obscene
or other unlawful material or information;
(viii)
Sending large volumes of unsolicited e-mails or materials,
commercial or otherwise. This risks overloading our
Network and has a negative impact on our customers and
public image;
(ix)
Violating any applicable federal, state, municipal,
local or foreign laws, rules, or regulations;
(x)
Advertising, transmitting or otherwise making available
any software, program, product, information or service
that is designed to violate this Policy, or otherwise
engaging in activities, whether lawful or unlawful,
that we determine to be harmful to customers, operations,
reputation, goodwill, partners and/or affiliates.
Network
Integrity and Content
We
reserve the right to access a customer's account to
investigate and/or resolve any problems. In addition,
you understand we will cooperate with the appropriate
legal authorities or other parties in investigating
claims of activity violating any law or this Policy.
No
computer system can be completely protected or should
be considered 100% safe from intrusion. E-mail and other
data transmissions over the Internet may pass through
many computer systems, and even with use of encryption
such information is only as secure as the encryption
method used.
We
do not generally monitor the activity of accounts except
to measure system utilization and accumulated billing
records. The views and comments expressed by customers
or others hosting or sending data through the Network
are solely those of their authors and do not necessarily
reflect any review, approval or endorsement by us. Customers
acknowledge that we have no control over the individuals
using the Internet and that we do not warrant that no
one will infringe upon your materials hosted on or distributed
through the Network. We are not responsible for the
content or tone of any e-mail or other transmissions,
and customers and others should not expect that we will
attempt to mediate or otherwise become involved in any
disagreement or dispute between Internet users. However,
we will cooperate with appropriate law enforcement agencies
involved in investigating instances.
Indemnification
You
agreed to defend, indemnify, save and hold us harmless
and our parents, subsidiaries and affiliates, and providers
(including, without limitation, Host N Post (HostNPost.com),
, and its affiliates) and each of the foregoing party's
directors, officers, employees, agents, contractors,
counsel, successors and assigns, from all liabilities,
claims, awards, expenses, damages and judgments, including
reasonable attorneys fees and cost that arise from your
use or misuse of the Services and Network. This means
you will pay for any people's claims brought against
us for which we believe you are responsible. We reserve
the right, at its own expense, to assume the defense
and control of any matter otherwise subject to indemnification
by you, in which event you will cooperate fully and
pay for the entire amount spent in asserting any defense.
Disclaimer
of Warranties
YOUR
USE OF THE SERVICES AND NETWORK IS SOLELY AT YOUR OWN
RISK. THE SERVICES AND NETWORK ARE PROVIDED "AS
IS" AND "AS AVAILABLE" WITH ALL FAULTS.
THE SERVICES AND NETWORK ARE PROVIDED WITHOUT ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, SECURITY AND ACCURACY (ALL OF WHICH
ARE EXPRESSLY DISCLAIMED). WE DO NOT REPRESENT OR WARRANT
THAT YOUR USE OF THE SERVICES AND NETWORK WILL BE UNINTERRUPTED,
ERROR FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS.
Limitation
of Liability
UNDER
NO CIRCUMSTANCES WILL WE, OUR, PARENTS, SUBSIDIARIES,
AFFILIATES OR PROVIDERS (INCLUDING, WITHOUT LIMITATION,
Host N Post (HostNPost.com), AND ITS AFFILIATES), AND
EACH OF THE FOREGOING PARTY'S DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, CONTRACTORS, ADVISORS, SUCCESSORS, AND ASSIGNS
BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULTS FROM THE
USE OF OR INABILITY TO USE THE SERVICES OR NETWORK.
THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED
LIABILITIES ARE BASED ON CONTRACT, TORT, NEGLIGENCE,
STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH LIABILITIES. REGARDLESS OF
ANY DAMAGES THAT YOU INCUR FOR ANY REASON, THE ENTIRE
LIABILITY TO YOU UNDER ANY PROVISION OF THIS POLICY
SHALL NOT EXCEED THE FEES PAID BY YOU PURSUANT TO THE
SERVICES AGREEMENT (OR SUCH LESSER AMOUNT IF THE LESSER
AMOUNT IS SET FORTH IN THE SERVICES AGREEMENT).
Applicable
Law and General Terms
The
Network has a substantial presence in Westchester County,
New York, U.S.A. By using the Services and accessing
the Network, you agree that the laws of the State of
New York and of the U.S.A. will govern all matters relating
to your use of the Services and this Policy, without
giving effect to any contrary conflicts of law principles.
You also agree and hereby submit to the exclusive personal
jurisdiction and venue of the federal and state courts
located in and for Westchester County, New York, U.S.A.
The prevailing party in any action to interpret or enforce
any part of this Policy shall be entitled to reasonable
attorneys' fees and costs, in addition to any other
relief entitled to it. Any failure by us to enforce
any of its rights under this Policy or applicable laws
shall not constitute a waiver of such rights. If any
provision of this Policy shall be deemed unlawful by
a court of competent jurisdiction, or for any reason
unenforceable, then that provision shall be deemed severable
from this Policy and shall not affect the validity and
enforceability of any remaining provisions hereunder.
This Policy contains the entire agreement relating to
the matters contained herein. If the service provider
indicated on the first page of this Policy is any other
than Host N Post (HostNPost.com), then you agree that
Host N Post (HostNPost.com), , and its affiliates, shall
be deemed an intended third party beneficiary to this
Policy. This means that Host N Post (HostNPost.com)
and its affiliates will be permitted to step in and
enforce the terms of this Policy.
We
hope this Policy is helpful to clarify the obligations
of customers. Any questions or reports about a violation
of this Policy should be sent to abuse@hostnpost.com
Last Date Revised: June 7, 2003
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