Web Hosting Service Agreement
4025 E. Chandler Blvd, #70-E1
Phoenix, AZ 85048
I. Financial Arrangements
1. Client agrees to a twelve (12) month contract, beginning upon briantafoya.com’s receipt of payment either by PayPal (account: firstname.lastname@example.org) services, on the www.briantafoya.com web site, by postal mail, or direct payment. Client agrees to pay briantafoya.com for services rendered pursuant to the charges specified on the order form. In the event of early cancellation, the client shall receive a full pro-rated refund for the remainder of their hosting period. The client will NOT receive a refund should the account be terminated for abuse as defined in this agreement.
2. Two payment options are available;
· One year payment option: First twelve (12) months payment plus any setup charges shall be due before account is setup. ($450.00 + $40.00 Setup and installation charge.)
· Monthly payment option: First month plus any setup charges shall be due before account is setup. Monthly recurring payments will continue from the date of the first payment. ($45.00 + $40.00 Setup and installation charge.)
3. This agreement will automatically renew for successive six (6) month periods unless cancelled in writing prior to the renewal date. Client will receive an invoice for charges and payment which is due upon receipt.
Payment Mailing Address:
Make checks payable to:
briantafoya.com shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or briantafoya.com’s server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
III. Material and Products
1. Client will provide briantafoya.com with material and data in a condition that is “server-ready”, which is in a form requiring no additional manipulation on the part of briantafoya.com. briantafoya.com’s all make no effort to validate this information for content, correctness or usability.
2. briantafoya.com will exercise no control whatsoever over the content of the information passing through the network. briantafoya.com makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. briantafoya.com so disclaims any warranty of merchant-ability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of briantafoya.com is at the Client’s own risk, and briantafoya.com specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of a connection to and do not represent guarantees of available end to end bandwidth. briantafoya.com expressly limits its damages to the Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. briantafoya.com specifically denies any responsibilities for any damages arising as a consequence of such unavailability. In the event that this material is not “Server-ready”, briantafoya.com may, at its option and at any time, reject this material, including but not limited to after it has been put on briantafoya.com’s Server. briantafoya.com agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of briantafoya.com. If the Client fails to modify the material, as directed by briantafoya.com, within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be deemed to be terminated.
IV. Trademarks & Copyrights
Client warrants that it has the right to use the applicable trademarks, if any, and grants briantafoya.com the right to use such trademarks in connection with briantafoya.com’s Server service.
Your site will be deleted and you will not receive a refund for the following:
UN-MONITORED TRAFFIC RESTRICTIONS:
UN-MONITORED TRAFFIC does not apply to any domain account consuming 10% or more of systems resources. Following are a list of sites that will often require more than 10% of our systems resources: Multiple domains residing at a single IP address, domains with archives or galleries, (i.e. .gif, .jpg, .exe, .zip, .tar, etc.), and domain accounts offering download files.
We are not saying that your web site can not contain such files, however if at any time they consume 10% or more of our systems resources you will be contacted to resolve the problem.
These include spamming (sending unsolicited advertising to those with which the customer has no existing business relationship, posting off-topic advertising in newsgroups); spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message; passive spamming (promoting a web site hosted by briantafoya.com by spamming from some other source), trolling (posting controversial messages in newsgroups to generate responses), mail bombing (inundating a user with email without any serious intent to correspond), generating a higher volume of outgoing mail than a normal user (10% or more of available system resources), and subscribing someone else to an electronic mailing list without that person’s permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages. Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email. Any customer repeatedly “mailbombed” or that attracts such behavior will be asked to leave. If you are not sure if your actions will be in violation, please ask first (email@example.com).
ABUSE OF THE LEGAL RIGHTS OF OTHERS:
Examples of unacceptable activities in this regard include posting private information about a person without their consent, infringing intellectual property rights, defaming a person or business, and knowingly making available code which will have a deleterious effect on third party computers. briantafoya.com supports free speech on the Internet, and will not suspend or cancel a customer’s account simply because it disagrees with the views expressed by the customer. Where there are allegations that a customer’s on-line activity has violated the legal rights of a third party, briantafoya.com will not substitute itself for a court of law in deciding tort claims raised by the third party.
ABUSE OF THE LAW:
briantafoya.com’s services may be used for lawful purposes only. Illegality includes but is not limited to: drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEG’s, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating U.S. export restrictions; stalking; or violating other state or federal law such as the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act. Linking to illegal material is also prohibited. briantafoya.com reserves the right to check system files, email, and other data on our servers for illegal content and materials, or for any other reasons deemed necessary.
ABUSE OF briantafoya.COM’S SERVER RESOURCES:
Running programs in the background on a briantafoya.com’s server or running chat rooms without briantafoya.com’s prior written authorization and the like are not acceptable uses of briantafoya.com’s servers. Internet Relay Chat and/or IRC bots are not acceptable uses of briantafoya.com’s servers. Further, any usage of ten percent (10%) or more of our system resources is an undue burden on our system and is unacceptable. If your usage ever exceeds ten percent (10%) of system resources, you will be contacted and asked to eliminate the problem.
briantafoya.com reserves the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.
Server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network. Attempt to circumvent any user authentication or security of host, network, or account. Accessing data not intended for user. Probing the security of any network. Spawning dozens of processes. Port scans, ping floods, packet spoofing, forging router information, Denial of Service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land, teardrop. Promulgation of viruses. IRC bots such as eggdrop or BitchX. Any activity, whether or not the intrusion results in the corruption or loss of data, will be investigated and proper action taken. The presence of any of these programs, whether or not run, will result in some action against the user up to and including termination.
V. Hardware, Equipment & Software
The customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access briantafoya.com. briantafoya.com makes no representations, warranties or assurances that the Customer’s equipment will be compatible with the briantafoya.com service.
VI. Domain Name Registration
briantafoya.com will not manage the Client’s domain name as the Client is solely responsible for the payment of all fees, both initial and maintenance, associated therewith.
VII. Support Services
The client is responsible for all activity originating from the account unless proven to be a victim of outside hacking or address forgery. The client agrees that he or she has the necessary knowledge to create and maintain their web space. Client agrees that it is not the responsibility of briantafoya.com to provide this knowledge or support outside matter specific to briantafoya.com’s servers.
System support services shall be provided by briantafoya.com to Client and include the following:
1. Account creation, including username and password. The client is responsible for securing their username/password;
2. Consultation to resolve technical or operational issues which may exist as barriers to the Client’s satisfactory use of briantafoya.com’s Server;
Full backups are made weekly, and backups of new/changed data made nightly. No guarantees are made of any kind, either expressed or implied, as to the integrity of these backups. Backups are made for server restoration purposes only. It is the clients’ responsibility to maintain local copies of their web content and information. If loss of data occurs due to an error of briantafoya.com, briantafoya.com will attempt to recover the data for no charge to the client. If data loss occurs due to negligence of client in securing their account or by an action of the client, briantafoya.com will attempt without guarantee to recover the data from the most recent archive for a $75.00 fee.
briantafoya.com maintains control and any ownership of any and all I.P. numbers and addresses that may be assigned to the client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
The Customer certifies that he or she is at least 18 years of age.
IX. Internet Etiquette
Electronic forums such as mail distribution emails and UseNet news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The practice of bulk unsolicited email or “spamming” is prohibited in conjunction with the briantafoya.com servers.
The network resources of briantafoya.com may not be used to impersonate another person or misrepresent authorization to act on behalf of others or briantafoya.com. All messages transmitted via briantafoya.com should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
This Agreement may not be assigned or transferred by Client, in whole or in part, either voluntarily or by operation of law, without the prior written consent of briantafoya.com.
This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. In such event, the canceling party will be required to pay to other party an amount equal to the unused portion of service excluding any hosting or setup charges. Not withstanding the above, briantafoya.com may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with the terms of this agreement.
XII. Limited Liability
briantafoya.com shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from briantafoya.com’s servers going off-line or being unavailable for any reason whatsoever. Further, briantafoya.com shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any web site from one of briantafoya.com’s servers. All damages shall be limited to the immediate termination of service. 1. Client expressly agrees that use of briantafoya.com’s Server is at Client’s sole risk. Neither briantafoya.com, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that briantafoya.com’s Server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the briantafoya.com’s server service, unless otherwise expressly stated in this Agreement.
2. Under no circumstances, including negligence, shall briantafoya.com, its offices, agents or any one else involved in creating, producing or distributing briantafoya.com’s Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the briantafoya.com’s server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays In operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to briantafoya.com’s records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on briantafoya.com’s Server service.
3. Notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney’s fee and court costs.
4. briantafoya.com.com shall be the sole arbiter of what is and is not a violation of these acceptable use policies. briantafoya.com.com reserves the right to terminate an account at any time and for any reason that causes harm to any of briantafoya.com.com customer’s web sites. briantafoya.com.com reserves the right to delete all content and files upon termination. briantafoya.com.com reserves the right to withhold any pre-paid funds for any site removed for violations of these policies. briantafoya.com.com reserves the right to refuse, cancel, or suspend service at our sole discretion.
XIII. Statute of Limitations
No action, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued, or in the case of any action for nonpayment, more than one (1) year from the date the last payment was due.
If any provision of this Agreement is invalid or unenforceable then such provision shall be curtailed and limited only to the extent necessary to bring it within legal requirements and this Agreement as so modified shall continue in full force and effect.
XV. Lawful Purpose
Client may only use briantafoya.com’s Server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secrets.
Client agrees that it shall defend, indemnify, save and hold briantafoya.com harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees, (“Liabilities”) asserted against briantafoya.com, its agents, its customers, servants 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, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless briantafoya.com against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with briantafoya.com’s Server; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement; and, (iv) any defective product which Client sold on briantafoya.com’s server.
The failure of either party to exercise any of its rights or to enforce any of the provisions of this Agreement on any occasion shall not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce each and every provision of this Agreement.
This Agreement constitutes the entire understanding between the parties and shall supersede all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Any changes or modifications thereto must be in writing and signed by both parties by their duly authorized representatives.
This Agreement shall be governed and construed in accordance with the laws of the State of Arizona.
briantafoya.com.com reserves the right to change these Policies without prior notice or warning. Non-enforcement of any part of these Policies does not constitute consent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.