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IMPORTANT
NOTICE: Prohosting4less.com works on a monthly basis, all
payments to Prohosting4less.com for Usage are
non-refundable. In case of downtime the damage will be
compensated, please read section IV. Uptime Guarantee.
This Service Agreement governs customer's purchase and
use, in any manner, of Hosting, as described in the
Order Form, ordered by customer and accepted by Prohosting4less.com and describes the terms and conditions that apply to
such purchase and use of the Services. Prohosting4less.com reserves the right to change or modify any of the terms
and conditions contained in this Agreement, the Addendum
and any policy or guideline incorporated by reference at
any time and from time to time in its sole discretion,
and to determine whether and when any such changes apply
to both existing or future customers. Any modification
will be effective upon posting of the revisions on our
site. Prohosting4less.com may post changes or modifications
to referenced policies and guidelines without notice to
you. Your continued use of the Services following Prohosting4less.com posting of any changes or modifications will constitute
your acceptance of such changes or modifications. IF
CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY
MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND
IMMEDIATELY NOTIFY Prohosting4less.com , OF YOUR TERMINATION
OF THIS AGREEMENT IN THE MANNER DESCRIBED BELOW.
1. This Agreement
shall be for an "Initial Term" of thirty (30) days for
Hosting. Customer agrees to all terms and conditions of
services provided by Prohosting4less.com ,
beginning upon receipt by fax, e-mail, or express mail.
2. All charges for Services are non-refundable
and must be paid in advance according to the then
current price applicable to the Services. Upon
registration for Hosting Services, customer must choose
to pay for the Services either by credit card via paypal
or upon your receipt of an invoice. If customer chooses
to pay by credit card upon registering for Hosting
Services, customer thereby authorizes Prohosting4less.com
to charge you to pay for any charges that may apply to
your account. Customer agrees that Prohosting4less.com
may accumulate any supplemental charges, as described in
the Order Form, incurred by you in your use of the
Services ("Supplemental Charges") until such charges
exceed $20 and then invoice the charges to customer.
Customer must notify Prohosting4less.com
of any changes to your billing information, your billing
address, or any information that may prohibit Prohosting4less.com
from charging you. If customer chooses to be invoiced
upon registration for Hosting Services, Prohosting4less.com
will send an invoice to you for the Services applicable
to the period for which you have registered for the
Services. Prohosting4less.com may
also send periodic invoices to customer for any
applicable Supplemental Charges associated with your use
of the Services.
Customer agrees to pay to Prohosting4less.com
the amount indicated in each invoice by the due date
reflected on the invoice. If customer fails to pay any
fees and taxes within three (3) days from applicable due
date for credit card or invoice payments, late charges
of the lesser of one and one-half per cent (1.5%) per
month or the maximum allowable under applicable law
shall also become payable by you to Prohosting4less.com .
In addition, customer's failure to fully pay any fees
and taxes within five (5) days after the applicable due
date will be deemed a material breach of this Agreement,
justifying Prohosting4less.com
suspension of its performance of the Services and/or
termination of this Agreement. Customer is responsible
for any fees associated with reinstated of Services. Any
such termination would not relieve customer from paying
past due fees plus interest. In the event of collection
enforcement, customer will be liable for any costs
associated with such collection, including, without
limitation, reasonable attorneys' fees, court costs and
collection agency fees.
3. This Agreement will be automatically renewed (the
"Renewal Term") at the end of the Initial Term for the
same period as the Initial Term unless you provide
Prohosting4less.com with notice of
termination either (a) at least thirty (30) days prior
to the end of the Initial Term or the Renewal Term,
whichever is then applicable.
4. Initial payment is due upon activation of account.
Activation takes effect on the date of receipt of
payment, and will be renewed automatically for identical
successive periods. Any changes made to the customer's
package shall be billed accordingly.
5. All orders are subject to acceptance by Prohosting4less.com .
An order will be deemed accepted by our company when
confirmation of the order is sent to the customer. We
may refuse to accept any order, or delay acceptance
awaiting completion of conditions the company may choose
to exercise. Such refusal of such conditions may not be
unreasonable, however, and Prohosting4less.com
agrees to provide the customer with reasonable notice by
E-mail or fax of any intent to delay or decline the
acceptance of any order.
6. Prohosting4less.com reserves
the right to suspend the customer's account and services
without notice should there be any problems with the
customers method of payment. This includes expired
credit cards, declined credit cards, inactive credit
cards, failed subscription payments, and invalid checks
or echecks. Prohosting4less.com Also
reserve's the rights to refuse service to customers
and/or prospects who are abusive toward Prohosting4less.com
employees and consultants.
7. Bandwidth utilization will be monitored via MRTG and
calculated by the following method: Monthly Avg. In +
Monthly Avg. Out / 8 Bits x 60 seconds x 60 minutes x 24
hours x 30.5 days = Total Data Transfer (GB).
Furthermore, the max burst rate for each port / server
is 100Mbps X 4 (BG4 Routing)
8. Servers provided Prohosting4less.com
are unmanaged. Customer will be responsible for all
server management and administration related issues.
Prohosting4less.com will provide
free manual reboot upon a request. Additional
professional (remote hand) support is also available at
$28.00 per hour with a one (1) hour minimum requirement.
9. Prohosting4less.com may filter
and block certain ports without notice at any time to
protect the network from Denial of Service (DDoS), SYNC,
and Ping flood attacks. Customer will need to consult
with the engineering department as to which ports are
available.
II. Taxes
Prohosting4less.com shall not be
liable for any taxes or other fees to be paid in
accordance with or related to purchases made from the
customer or Prohosting4less.com
servers. Customer also agrees to take full
responsibility for all taxes and fees of any nature
associated with any such products sold.
III. Material and Products
1. Prohosting4less.com will
exercise no control whatsoever over the content of the
information passing through the network or on the
customer's web sites. Prohosting4less.com
makes no warranties or guarantees of any kind, whether
expressed or implied for the service it is providing.
Prohosting4less.com also disclaims
any warranty of merchantability or fitness for
particular purpose and will not be responsible for any
damages that may be suffered by the customer, including
loss of data resulting from delays, non-deliveries or
service interruptions or gaps by any cause or errors or
omissions of the customer. Prohosting4less.com
is not responsible for any loss, erasure, or corruption
of customer's data or files whatsoever. Use of any
information obtained by way of Prohosting4less.com is
at the customer's own risk, and the company specifically
denies any responsibility for the accuracy or quality of
information obtained through its services. Network
connectivity represents the speed of connection to our
network and does not represent guarantees of available
end to end bandwidth. Prohosting4less.com
expressly limits its damages to the customer for any
non-accessibility time or other down time to the
pro-rate monthly charge during the system
unavailability. Prohosting4less.com
specifically denies any responsibilities for any damages
arising from a consequence of such unavailability. In
the event that this material is not "server-ready",
Prohosting4less.com may, at its
option and at any time, reject this material, including
but not limited to after it has been put on our servers.
Prohosting4less.com agrees to
notify customer immediately of our refusal of the
material and afford customer the opportunity to amend or
modify the material to satisfy the needs and/or
requirements of the company. If the customer fails to
modify the material, as directed by Prohosting4less.com
within a reasonable period of time, which shall be
determined between the parties themselves, the Agreement
shall be terminated.
IV. Warranties &
Representations
Customer warrants, represents, and covenants to
Prohosting4less.com that (a) you are at
least nineteen (19) years of age; (b) you possess the
legal right and ability to enter into this Agreement;
(c) you will use the Services only for lawful purposes
and in accordance with this Agreement and all applicable
policies and guidelines; (d) you will be financially
responsible for the use of your account; (e) you have
acquired or will acquire all authorizations necessary
for hypertext links to third-party Web sites or other
content; (f) you have verified or will verify the
accuracy of materials distributed or made available for
distribution via the Services, including, without
limitation, your content, descriptive claims,
warranties, guarantees, nature of business, and address
where business is conducted, and (g) your content does
not and will not infringe or violate any right of any
third party (including any intellectual property rights)
or violate any applicable law, regulation or ordinance.
V. Trademarks & Copyrights
Customer warrants that it has the right to use the
applicable trademarks, if any.
Prohosting4less.com may request
the right to use such trademarks in connection with our
service.
Customer will review such a request promptly, and not
unreasonably withhold such permission.
VI. Termination
This Agreement may be terminated by Prohosting4less.com ,
without cause, by giving the other party three (3) days
notice via e-mail or fax. In such event, the company
will not be required to pay to the other party an amount
equal to the unused and prorated portion of service
excluding any setup charges. Not withstanding the above,
Prohosting4less.com may terminate
the service under this Agreement at any time, without
penalty, if the customer fails to comply with the terms
of this Agreement. It is the customer's responsibility
to point your domain to another service provider upon
termination, cancellation or discontinuation of service.
VII. Limited Liability
1. Customer expressly agrees that use of Prohosting4less.com
Servers is at customer's sole risk. Neither the company,
its employees, agents, resellers, third party
information providers, merchants licensers or the like,
warrant that Prohosting4less.com
service will not be interrupted or be error free; nor do
they make any warranty as to the results that might be
obtained from the use of the Server service or as to the
accuracy, or reliability of any information service or
merchandise contained in or provided through our
network, unless otherwise expressly stated in this
Agreement. Customer also acknowledge and accept that any
damages will be limited to no more than 100% of the
previous month's invoice.
2. Under no circumstances, including negligence, shall
Prohosting4less.com , its officers,
agents or any one else be liable for any direct,
indirect, incidental, special or consequential damages
that result from the use of or inability to use our
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 Prohosting4less.com records, programs or services.
Customer hereby acknowledges that this paragraph shall
apply to all contents on all servers.
VIII. Indemnification
Customer agrees that it shall defend, indemnify, save
and hold Prohosting4less.com
harmless from any demands, liabilities, losses, costs
and claims, including reasonable attorneys fees,
("Liabilities") asserted against the company, 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 the customer, its agents, employees or assigns.
Customer agrees to defend, indemnify and hold harmless
Prohosting4less.com against
Liabilities arising out of (i) any injury to person or
property caused by any products sold or otherwise
distributed in connection with our servers; (ii) any
material supplied by the customer infringing or
allegedly infringing on the proprietary rights of a
third party; (iii) copyright infringement and (iv) any
defective product which customer sold on Prohosting4less.com
Servers.
IX. Partial Invalidity
If any provision of this agreement is held to be invalid
by a court of competent jurisdiction, then the remaining
provisions shall nevertheless remain in full force and
effect. Prohosting4less.com and
Customer agree to renegotiate in good faith any term
held invalid and to be bound by mutually agreed
substitute provision.
X. Disputes
The parties shall try to resolve all disputes that might
arise out of this agreement in a spirit of cooperation
without formal procedures. Any dispute which cannot be
so resolved (other than the collection of money due on
unpaid invoices) and other than the injunctive relief
referred to in paragraph 10 shall be subject to
arbitration upon written demand of either party.
Arbitration shall take place in Erie County, New York.
The arbitration will take place before an arbitration
panel chosen as follows: The parties shall each choose
an arbitrator, and the two arbitrators shall choose a
third arbitrator and determine the third arbitrator's
pay. Each party shall have one veto over the choice of
the third arbitrator. The three arbitrators shall
schedule an informal proceeding, hear the arguments, and
decide the matter by secret majority vote. Unless the
arbitrators decide otherwise, each party shall pay the
costs of its own arbitrator, and shall pay half of the
other costs of the arbitration proceeding. Each party
shall have the right to have the proceedings
transcribed. The arbitrators will not have the authority
to award punitive damages or any other form of relief
not contemplated in the contract. The majority of
arbitrators shall render a written opinion setting forth
the basis on which they arrived at the decision
regarding each issue submitted to arbitration; the
dissenting arbitrator, if any, shall not issue a
dissenting opinion. Regarding each issue submitted to
arbitration, the decision will be final and binding only
to the extent it is accompanied by a written explanation
of the basis upon which it was arrived at. Judgment upon
the award, if any, rendered by the arbitrators may be
entered in any court having jurisdiction.
Should any legal action permissible under this agreement
be taken to enforce the conditions and terms of this
agreement, in particular the right to collect money due
on unpaid invoices, the prevailing party shall be
entitled to recover reasonable legal fees and expenses
incurred at the trial and appellate levels.
XI. Confidentiality
Customer acknowledges that by reason of their
relationship, both customer and Prohosting4less.com
may have access to certain products, information and
materials relating to the other party's business, which
may include business plans, customers, software
technology, and marketing plans that are confidential
and of substantial value to either party, respectively,
and which value would be impaired if such information
were disclosed to third parties. Consequently, both
Prohosting4less.com and customer
agree that it will not use in any way for its own
account or for the account of any third party, nor
disclose to any third party, any such information
revealed to it by either party, as the case may be.
Customer and Prohosting4less.com
further agree that it will take every appropriate
precaution to protect the confidentiality of such
information. In the event of termination of this
agreement, there shall be no use or disclosure by either
party of any such confidential information in its
possession, and all confidential documents shall be
returned to the rightful owner, or destroyed. The
provisions of this section shall survive the termination
of the agreement for any reason. Upon any breach or
threatened breach of this section, either party shall be
entitled to injunctive relief, which relief will not be
contested by the customer or Prohosting4less.com .
XII. Notices
Except with respect to service of process as set forth
in paragraph, all notices may be sent by e-mail, fax, or
express mail to the e-mail address, fax number, or
address most recently provided and will be effective
upon transmission. Evidence of successful transmission
shall be retained.
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Acceptable Use Policy
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