Hosting Agreement
HOSTING TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS
Welcome to Portsmouth Media – NH Web Design and Graphic Design (“Portsmouth Media – NH Web Design and Graphic Design”). Please note that other Portsmouth Media – NH Web Design and Graphic Design promotions/services, outside of Hosting, may be governed by a different Terms of Service agreement, which can be located at our Terms of Service
Our Terms and Conditions policy (“TOS”) is one of zero tolerance. We reserve the right to immediately discontinue services without liability, refund or continuance of any prepaid service fees. By using Portsmouth Media – NH Web Design and Graphic Design Hosting services (“Services”), you constitute your approval of our policy.
2. DESCRIPTION OF SERVICE/BILLING TERM
Unless explicitly stated otherwise, any new feature that augments or enhances the current Service, including the release of new Portsmouth Media – NH Web Design and Graphic Design resources, shall be subject to the TOS and, in some instances, may disable your domain for the duration of the update period, or longer, if an error occurs. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
Portsmouth Media – NH Web Design and Graphic Design will not pro-rate any return for unused service. For example, if you have an account that you are paying for monthly and you decide to close it a few days after your last payment, you will not be issued any refund, whether in full or pro-rated. By using Portsmouth Media – NH Web Design and Graphic Design Hosting, you understand and agree to this billing term. You also understand that while no refund will be issued, you are always free to keep your account open for the full amount of time you have paid for.
3. YOUR REGISTRATION OBLIGATIONS
In consideration for use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Portsmouth Media – NH Web Design and Graphic Design has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Portsmouth Media – NH Web Design and Graphic Design has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You also understand and agree that the service may include certain communications from Portsmouth Media – NH Web Design and Graphic Design, such as service announcements and administrative messages, and that these communications are considered part of Portsmouth Media – NH Web Design and Graphic Design membership and you will not be able to opt out of receiving them.
4. PRIVACY POLICY
Pursuant to Portsmouth Media – NH Web Design and Graphic Design’s privacy policy, we may disclose to third parties certain aggregate information contained in your Registration Data or related data, provided that, such information will NOT include personally identifying information, except as specifically authorized by you or in the good faith belief that such action is reasonably necessary to comply with the law, legal process, to enforce the TOS, or under any of the other circumstances set forth in our privacy policy, as may be amended from time to time.
5. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Portsmouth Media – NH Web Design and Graphic Design, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service. Portsmouth Media – NH Web Design and Graphic Design does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable.
* 5.1 In all cases, “Unlimited” Services includes the following limitations:
o (a) You may not utilize unlimited Services for file upload sharing, backing up, archiving, mirroring, or for distribution websites.
o (b) The Services are not for use with video sharing.
o (c) The Services are intended for the normal website operation by individuals and small/medium-sized businesses. The Services are not intended for use by enterprise-level companies.
o (d) Portsmouth Media makes reasonable efforts to provide the bandwidth or disc space available to allow you to successfully display your website; however, Portsmouth Media reserves the right to establish specific requirements regarding disk space, bandwidth, and associated resources at any time and without prior notice if your use of the Services unfairly or adversely impacts use by other customers.
o (e) You may utilize more than one MySQL database but each database may not exceed more than 5GB.
* 5.2 You further agree to not use the Service to:
o (a) upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites;
o (b) harm minors in any way;
o (c) impersonate any person or entity, including, but not limited to, a Portsmouth Media – NH Web Design and Graphic Design official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
o (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
o (e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
o (f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
o (g) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas of the Service that are designated for such purpose. Portsmouth Media – NH Web Design and Graphic Design will be the sole arbiter as to what constitutes a violation of this provision. Customers are also in violation of this provision if they engage in spamming using the service of another ISP or IPP, but reference in the spam a Web site hosted on a Portsmouth Media – NH Web Design and Graphic Design server. Violators may be assessed a minimum administration fee of $250 and will face immediate suspension.
o (h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
o (i) disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
o (j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
o (k) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
o (l) “stalk” or otherwise harass another;
o (m) collect or store personal data about other users;
o (n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites;
o (o) misrepresent the site in such a way that will result in needless traffic. Some examples of unacceptable content or links include: pirated software, hacker programs or archives, Warez sites, Spamware, Copyrighted MP3s and IRC bots;
o (p) cause any web site to use a high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources). Any violators will be given the option to pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a Dedicated Server plan. Portsmouth Media – NH Web Design and Graphic Design shall be the sole arbiter of what is considered to be a high server usage level. Any Web hosting account deemed to be adversely affecting server performance or network integrity will be shut down without prior notice;
o (q) use CGI script sharing with domains not hosted by Portsmouth Media – NH Web Design and Graphic Design. Any CGI-scripts deemed to be adversely affecting server performance or network integrity will be shut down without prior notice;
o (r) access a remote database inappropriately. External access to our database server is intended to remotely manage the databases. If remote database access is found to be utilized in a manner other than as intended, in our discretion, we may immediately close or deny remote access to the database or entire account;
o (s) upload or post any credit card account data or otherwise transmit any insecure credit card account data; and
o (t) perform any action that will adversely impact other users of the hosting services or exceed imposed usage limits.
6. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
7. CONTENT SUBMITTED TO Portsmouth Media – NH Web Design and Graphic Design
Portsmouth Media – NH Web Design and Graphic Design does not claim ownership of the Content you place on your Site. By submitting Content to Portsmouth Media – NH Web Design and Graphic Design for inclusion on your Site, you grant Portsmouth Media – NH Web Design and Graphic Design the world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your Site on Portsmouth Media – NH Web Design and Graphic Design’s Internet properties. This license exists only for as long as you continue to be a Portsmouth Media – NH Web Design and Graphic Design customer and shall be terminated at the time your Hosting and/or Site is terminated.
You acknowledge that Portsmouth Media – NH Web Design and Graphic Design does not pre-screen Content, but that Portsmouth Media – NH Web Design and Graphic Design and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Portsmouth Media – NH Web Design and Graphic Design and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
8. INDEMNITY
You agree to indemnify and hold Portsmouth Media – NH Web Design and Graphic Design, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service.
10. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Portsmouth Media – NH Web Design and Graphic Design may establish general practices and limits concerning use of the Service.
You acknowledge that you must use the name server settings as specified for your hosting subscription. Failure to do so may result in an outage.
You also acknowledge that Portsmouth Media – NH Web Design and Graphic Design is not liable and is not required to reimburse you for any outages, failures, or damages that may result from potential outages resulting from; (i) scheduled maintenance as posted from time to time at Portsmouth Media – NH Web Design and Graphic Design; (ii) your behavior or the performance or failure of your equipment, facilities or applications; (iii) circumstances beyond Portsmouth Media – NH Web Design and Graphic Design’s 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 interruption or delay in telecommunications or third party services, including DNS propagation, Denial of Service (DOS) attacks, domain name registration/transfer, failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site; or (iv) a client breaking any item in this TOS causing a machine to fail as a result.
You acknowledge that (1) your email accounts will not exceed the posted storage limits; and (2) items older than 30 days in your trash or deleted items folder are subject to automatic deletion. You further acknowledge that Portsmouth Media – NH Web Design and Graphic Design reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
11. MODIFICATIONS TO SERVICE/AGREEMENT
Portsmouth Media – NH Web Design and Graphic Design reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Portsmouth Media – NH Web Design and Graphic Design shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective immediately upon posting of the revised Agreement or change to the service(s) on Portsmouth Media – NH Web Design and Graphic Design’s Web sites, or upon notification to you by e-mail or United States mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice by e-mail or United States mail addressed as follows, Attention: Customer Support, 8100 NE Parkway Drive, Suite 300, Vancouver, Washington, 98662. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, but you will not incur any additional fees. By continuing to use Portsmouth Media – NH Web Design and Graphic Design services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of Portsmouth Media – NH Web Design and Graphic Design is authorized to alter or amend the terms and conditions of this Agreement.
12. TERMINATION
You agree that Portsmouth Media – NH Web Design and Graphic Design, in its sole discretion, may terminate your password, Hosting, use of the Service or use of any other Portsmouth Media – NH Web Design and Graphic Design service, and remove and discard any Content within the Service, for any reason, with or without notice, including, without limitation, for lack of use or if Portsmouth Media – NH Web Design and Graphic Design believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Portsmouth Media – NH Web Design and Graphic Design will be the sole arbiter as to what constitutes a violation of the TOS. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Portsmouth Media – NH Web Design and Graphic Design may immediately deactivate or delete your Hosting service and all related information and files in your Hosting account and/or bar any further access to such files or the Service. Further, you agree that Portsmouth Media – NH Web Design and Graphic Design shall not be liable to you or any third-party for any termination of your access to the Service.
When Portsmouth Media – NH Web Design and Graphic Design becomes aware of an alleged violation of its Terms and Conditions, we will initiate an investigation. During the investigation, Portsmouth Media – NH Web Design and Graphic Design may restrict a customer’s access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Portsmouth Media – NH Web Design and Graphic Design may, at its sole discretion, restrict, suspend, or terminate a customer’s account and/or pursue other civil remedies. If such violation is a criminal offense, Portsmouth Media – NH Web Design and Graphic Design will notify the appropriate law enforcement authorities of such violation.
Portsmouth Media – NH Web Design and Graphic Design does not issue credits for outages incurred through service disablement resulting from TOS violations. Portsmouth Media – NH Web Design and Graphic Design does not issue refunds for accounts terminated for TOS violations.
13. ADVERTISEMENTS AND PROMOTIONS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Portsmouth Media – NH Web Design and Graphic Design shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
14. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Portsmouth Media – NH Web Design and Graphic Design has no control over such sites and resources, you acknowledge and agree that Portsmouth Media – NH Web Design and Graphic Design is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Portsmouth Media – NH Web Design and Graphic Design shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
15. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE FAILURES, THEREFORE, IT IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. Portsmouth Media EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) Portsmouth Media – NH Web Design and Graphic Design MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Portsmouth Media – NH Web Design and Graphic Design OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
16. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Portsmouth Media – NH Web Design and Graphic Design, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Portsmouth Media – NH Web Design and Graphic Design HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL Portsmouth Media – NH Web Design and Graphic Design’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICE IN THE PAST MONTH.
17. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 15 AND 16 MAY NOT APPLY TO YOU.
18. NOTICE
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices on the Portsmouth Media – NH Web Design and Graphic Design website.
19. TRADEMARKS AND COPYRIGHTS
Portsmouth Media – NH Web Design and Graphic Design respects the intellectual property rights of others and we ask our users to do the same. You must obtain permission and rights to use any information or files that are copyrighted by a third party. You agree to indemnify and hold harmless Portsmouth Media – NH Web Design and Graphic Design from any and all claims resulting from your negligence, intentional failure or inability to obtain proper copyright permissions. You represent and warrant to Portsmouth Media – NH Web Design and Graphic Design that all such permissions have been obtained, and evidence of all necessary permissions may be requested from you.
The Digital Millennium Copyright Act (“DMCA”) sets forth the requirements for valid copyright infringement notification. Portsmouth Media – NH Web Design and Graphic Design takes all allegations seriously and will investigate each notice. Once Portsmouth Media – NH Web Design and Graphic Design receives an infringement notice, we will notify the web site owner that they will have 24 hours to either (i) take down or remove the disputed material, or (ii) provide a counter-notice. Portsmouth Media – NH Web Design and Graphic Design still reserves the right to remove or take down material immediately without any prior notice.
Please refer to the Legal Notices sections of our website on how to notify Portsmouth Media of an infringement of your copyright.
20. GENERAL INFORMATION
The TOS constitutes the entire agreement between you and Portsmouth Media – NH Web Design and Graphic Design and govern your use of the Service, superseding any prior agreements between you and Portsmouth Media – NH Web Design and Graphic Design (including, but not limited to, any prior versions of the TOS). You also may be subject to additional terms and conditions that may apply when you use affiliate or other Portsmouth Media – NH Web Design and Graphic Design services, third-party content or third-party software. The TOS and the relationship between you and Portsmouth Media – NH Web Design and Graphic Design shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and Portsmouth Media – NH Web Design and Graphic Design agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Clark, Washington. The failure of Portsmouth Media – NH Web Design and Graphic Design to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
21. VIOLATIONS
Please report any violations of the TOS to support@PortsmouthMedia.com.
(October 15, 2009 Version)