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Terms and Conditions
Last Update 5/02/07
Hostwerks, Inc. (hereby called "The Service Provider") is an on-line hosting provider for personal and business world wide web pages. HostWerks maintains The Service Provider as a service to the Internet community. The use of The Service Provider is subject to the following terms and conditions.NOTICES. Except as otherwise provided herein, all notices hereunder shall be given in writing as follows:
Hostwerks, Inc. may modify this agreement on an as-needed basis by placing an update of this posting, and your continued use of The Service Provider following each updated posting shall be deemed to be your acceptance of any such modification. Furthermore, it is your responsibility to check the "Terms and Conditions" page of The Service Provider regularly to determine whether this agreement has been modified. You are likewise required to keep abreast of updates to the information published on The Service Provider's FAQ and Acceptable Use Policy. If you do not agree with the Terms and Conditions of The Service Provider or any modifications to this Agreement, You must immediately stop using The Service Provider.
The entire content of The Service Provider is Copyrighted, and all rights are reserved. You may save to disk or print out individual or small selections of information contained within The Service Provider for your own use, provided that you do not collect multiple small selections for the purpose of replicating all or substantial portions of The Service Provider. The Service Provider may be displayed by you to limited numbers of persons provided that you do not charge for such a presentation.
BILLING FOR ALL ACCOUNTS. Hostwerks, Inc. will accept PayPal, check, and cash payments for services. Accounts are billed in advance at the beginning of each accounts physical month. Hostwerks, Inc. will send a reminder via email to all customers who have a balance due after 5 days. Payments are due on the date of renewal. All accounts with a balance after 15 days will be charged a $10 late fee per month and suspended. Accounts will be reactivated when payment is made in full. Any accounts with a 45-day balance will be closed and sent to collections.
You agree to pay Hostwerks, Inc. all charges relating to use of your account(s) according to rates and prices published online at the time of use. You are responsible for charges from the application date until the account is closed and Hostwerks, Inc. may apply the amount due to your credit card at any time. You are solely responsible for informing Hostwerks, Inc. of all new customer contact and billing information including new expiration dates on your listed credit card, no remaining credit on the credit account, new credit card numbers, address and phone number changes. Hostwerks, Inc. will however send an email reminder to you if your credit card expires in an ensuing month. You are solely responsible for notifying Hostwerks, Inc. if you would like to cancel your account. Charges will continue to accrue until notice is given. You are responsible for payment through the end of the cancellation month. Hostwerks, Inc. will charge an additional fee per invoice if you request invoices by U.S. mail.
CHARGES. Charges for Hostwerks, Inc. Internet Services shall be as stated in the Internet Service Application, or as otherwise agreed in writing by the parties, and shall be payable by you commencing no later than one business day after receipt of application by Hostwerks, Inc..
All pre-paid plans are non-refundable. All pre-paid price plans are treated as debit accounts; you are set up with a credit for indicated number of months. If you do incur any charges, this amount will be applied to your balance. When your balance reaches $0.00, the package is terminated, regardless of the length of time to reach that balance. All listed charges are exclusive of sales, use and other taxes, which are your responsibility.
ADDITIONAL CHARGES. Hostwerks, Inc. will charge $25 for all returned checks. A service charge of $10.00 will be assessed on late payments. You are liable for any and all attorney fees, court costs, and collection agency fees or commissions if Hostwerks, Inc. has to resort to these methods in order to collect debts owed to Hostwerks, Inc. You agree to pay Hostwerks, Inc. its reasonable expenses, including attorney fees, incurred in enforcing its rights under this Agreement.
RELATED CHARGES. You are responsible for any local or long distance phone charges accrued in connecting to Hostwerks, Inc. You are responsible for equipment, including computer hardware and software, used in connecting to Hostwerks, Inc..
LIMITATION OF LIABILITY. Hostwerks, Inc. exercises no control whatsoever over the content of the information accessed through Hostwerks, Inc. Internet Services. Hostwerks, Inc. Internet Services are provided on an as-is, as-available basis, without warranty of any kind, expressed or implied, including, but not limited to, the warranties of performance, merchantability and fitness for a particular purpose. Hostwerks, Inc. and/or contributors shall have no liability whatsoever to you for any claim(s) relating in any way to (i) your inability or failure to perform research or related work or to work properly or completely, or (ii) any lost profits or consequential, exemplary, incidental, indirect or special damages relating in whole or in part to your rights hereunder or use of, or inability to use, Hostwerks, Inc.s Internet Services. Hostwerks, Inc. will not be responsible for any damage suffered by you, including, but not limited to, loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions caused by it's own negligence or your errors or omissions. Use of any information obtained via Hostwerks, Inc. Internet Services is at your sole risk. Hostwerks, Inc. specifically disclaims any responsibility for the accuracy or quality of information obtained through Hostwerks, Inc..
Under no circumstances and under no legal theory, tort, contract, or otherwise, shall Hostwerks, Inc. or its suppliers or resellers be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work-stoppage, computer failure or malfunction, or any and all other commercial damages or losses, or for any damages in excess of Hostwerks, Inc. list price for a license to the Software and Documentation, even if Hostwerks, Inc. shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to you.
ALLOWABLE USE. Hostwerks, Inc. Internet Services may only be used for lawful purposes. Transmission of any material in violation of any federal or state statute or 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 secret. The posting of copyrighted software without proper authorization (commonly referred to as Warez) and/or the posting of software access codes (commonly referred to as Cracks) will be cause for account cancellation with forfeiture of prepaid fees. You agree to indemnify and hold harmless Hostwerks, Inc. from any claims resulting from your use of Hostwerks, Inc. service.
All shell accounts provided by Hostwerks, Inc. may only be used interactively. They may not be used to run processes unattended or while not connected including, but not limited to, any IRC bot, cron job, or screen.
Commercial advertising is an accepted and welcome use of the Internet. However, there are appropriate and inappropriate places for Internet advertising. Unsolicited commercial advertisements are not allowed in email, and will result in account suspension or cancellation and fines as stated in Additional Charges.
Commercial advertisements are unwelcome in most Usenet discussion groups and on most email mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. "Spamming," or sending a message to many different off-topic newsgroups, is particularly unacceptable and will be treated as such. Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. Email is a person-to-person medium, not a broadcast medium.
You agree to abide by Hostwerks, Inc. policies concerning use of Hostwerks, Inc. Internet Services. Unsolicited advertisements via email, or via discussion groups whose charter does not explicitly allow advertisements, is specifically not an allowable use. Hostwerks, Inc. reserves the right to suspend access to service for your account(s) upon an indication of disallowed use or credit problems including delinquent payments or rejection of credit card charges. If an account is suspended twice, it may be closed permanently.
RESPONSIBILITY FOR ACCOUNT USE. You are responsible for all use of your account(s) and confidentiality of password(s). Hostwerks, Inc. will suspend or change access upon notification that your password has been stolen, lost or otherwise possibly compromised. Hostwerks, Inc. is not responsible for your personal files residing online on Hostwerks, Inc.-owned and controlled computers. You shall be responsible for independent backup of your data stored online. You shall be responsible for all access to and use of Hostwerks, Inc. Internet Services by your personnel or by means of your equipment, whether or not you have knowledge of or authorize such access or use.
If subscriber is less than 18 years of age, the application must be signed and these terms agreed to by a parent or legal guardian, who is responsible for all charges related to the use of subscribers account(s).
UNAUTHORIZED USE OF ACCOUNT. Hostwerks, Inc. will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include "social engineering" (tricking other people into releasing their passwords), password cracking, security hole scanning, denial-of-service attacks (ping-flooding, sending packets with an illegal packet size, UDP flooding, half-open TCP connection flooding, etc.) and the like.
Harassment or abusive use of email and other Internet services is a rare but serious misuse of Internet resources. Hostwerks, Inc. will handle incidents of harassment on a case-by-case basis, consulting with all parties involved.
Any unauthorized use of accounts or computers by a Hostwerks, Inc. customer, whether or not the attacked account or computer belongs to Hostwerks, Inc., will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and legal action, according to the seriousness of the attack.
LIMITATIONS ON RESOURCE USAGE. Hostwerks, Inc. reserves the right to impose limits on the total amount of disk space and other resources available for your use on Hostwerks, Inc.-operated computers. Account users are subject to the allocated amount of disk space for all their disk usage, including incoming mail files and personal Web pages. Hostwerks, Inc. reserves the right to delete without notice personal files that have not been accessed for more than one month.
EMAIL PRIVACY. Electronic mail passes through multiple mail servers on the Internet as it passes from source to destination. One can never be guaranteed privacy from every possible mail server; therefore, someone seeking total privacy should use some encryption scheme to render their messages unreadable by eavesdroppers. With regards to Hostwerks, Inc.'s mail servers, Hostwerks, Inc. places a high value on privacy, and will only examine users' mail when absolutely required, for example when troubleshooting email delivery problems or being presented with a search warrant for the information.
ILLEGAL MATERIAL. Hostwerks, Inc. bears certain legal liabilities for the use of its computer network and equipment. As such Hostwerks, Inc. must require that its customers do not use Hostwerks, Inc.'s network for illegal purposes. When presented with a search warrant, Hostwerks, Inc. is obligated to release any information named therein, and will cooperate with the authorities in any criminal investigation of inappropriate Internet usage.
However, Hostwerks, Inc. recognizes that the legal status of the Internet has not yet been resolved satisfactorily, either through legislation or court precedent. Therefore Hostwerks, Inc. must make certain decisions regarding the illegality of various specific actions. Among the actions Hostwerks, Inc. considers illegal and therefore not allowed on its network are: unauthorized distribution of copyrighted material; exploitation of minors; and unauthorized use of computer resources. Hostwerks, Inc. believes that the First Amendment rights of free speech, freedom of the press, and freedom of association apply to the Internet to the same degree as they do to print media, and that any attempt to infringe upon those rights is void of legitimacy.
WEB SERVICE. Hostwerks, Inc. offers Web service and hosts commercial web pages for a fee. In all cases, the Web pages reside on Hostwerks, Inc. computer equipment, giving Hostwerks, Inc. some ethical responsibility for the content of such pages. Hostwerks, Inc. will handle potentially inappropriate Web pages on a case-by-case basis. Examples of inappropriate information include downloadable virus code and obscenity.
Hostwerks, Inc. grants you a non-exclusive, nontransferable, limitedlicense to store documents on a Hostwerks, Inc. server, and to use the server at burst bandwidth speeds up to Hostwerks, Inc. full capacity. Sustained average bandwidth usage, as measured by Hostwerks, Inc., over the course of any seven (7) days shall not exceed 64 kilobits per second (kbps). Hostwerks, Inc. shall notify you if this limit is exceeded, after which you have two (2) weeks to lower the bandwidth usage or incur an additional charge of $100 per month per 64Kbps of sustained average bandwidth usage.
The term "Bandwidth" is defined as: The total additive amount of data downloaded from sites on Hostwerks, Inc.'s servers that comprise a single billing group. For billing purposes, this is generally considered to be monthly.
To maintain the integrity of our service the following limitations apply:
Sites with Banners, graphics or cgi scripts running from their domain used on other domains. Sites with picture galleries (This is any site where 50% of the files transferred are graphics) Sites offering download files or archives. (This is any site where 50% or more of their monthly traffic is from file downloads) Sites using more than 30% of system resources.
Hostwerks, Inc. will be the sole arbiter as to what constitutes a violation of this provision.
TERM AND TERMINATION. This Agreement shall become effective on the date the service application is entered into Hostwerks, Inc. system (no later than the end of one business day after receipt of application). Hostwerks, Inc., at its sole discretion, may terminate this Agreement immediately or suspend your access to the service upon any breach of this Agreement by you.
You are responsible for notifying Hostwerks, Inc. of your wish to terminate your account, if so desired. Charges will continue to accrue until your notification to Hostwerks, Inc. of account termination, or until your account is suspended due to late payment. After 60 days of nonpayment, Hostwerks, Inc. will close your account; you will then be required to re-subscribe according to policies in effect at that time in order to continue service.
EFFECT OF AGREEMENT. This Agreement (which shall include the current and future Schedules hereto) represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. The acceptance of any purchase order placed by you is expressly made conditional on your assent to the terms set forth herein, and not those contained in your purchase order.
MODIFICATION OF TERMS AND CHARGES. Hostwerks, Inc. reserves the right to change rates or otherwise modify provisions of this Agreement by notifying you at least thirty (30) days before the effective date of the change, by written or online notice. Your use of Hostwerks, Inc. Internet Services after such notice shall constitute your acceptance of the modifications to this Agreement.
FORCE MAJEURE. Hostwerks, Inc. performance hereunder is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor disputes, inability to obtain necessary supplies and the like.
SEVERABILITY. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and all other provisions are unaffected.
330 Foster Street
Fort Atkinson, WI 53538
GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the state of Delaware, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly included.
WAIVER. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.