Terms of Service and Acceptable Use Policy (AUP)
I. GENERAL
EMW Hosting provides each of its services (each a “EMW Hosting Service”) to you under the terms set forth in certain agreements with you, each of which incorporates this Agreement by reference. Any reference to “this Agreement” shall be interpreted to mean this
Agreement and any agreement in which it is incorporated. In addition, the EMW Hosting Legal Infringement Policy, Privacy Policy, Price Match Policy, and Special Discount Pricing Policy are each hereby incorporated into this Agreement by reference. Please carefully read the Agreement, the Legal Infringement Policy, the Privacy Policy, the Price Match Policy, Special Discount Pricing Policy and each agreement that is applicable to you.
If we provide or resell certain software or services to you, you understand and agree that you may be bound by additional terms and conditions imposed by applicable third-party resellers or licensors, which are also incorporated herein by reference.
Your use of the EMW Hosting Services constitutes your agreement to abide by the laws of the United States and of the state and country in which you reside, including, but not limited to, all intellectual property laws, tariff regulations, export controls, treaties, and international laws.
If you do not agree to abide by this Agreement, you are prohibited from using the EMW Services. This Agreement is not a complete representation of all EMW Hosting policies or the implementation of all such policies.
We may periodically change, modify, or update this Agreement without notice to you. Your continued use of the EMW Hosting Services after we post a changed, modified, or updated Agreement serves as your acceptance of those updated policies. Please refer to this Agreement regularly to remain updated about our current policies.
This Agreement was updated on or about September 1st, 2013.
II. RESTRICTIONS: You agree that you will NOT use the EMW Hosting Services to
Violate any applicable local, state or federal law or regulation, including, but not limited to, any copyright, trademark, patent, anti-piracy, or other intellectual property law or regulation, or any export control or child pornography law, or encourage or enable others to violate any such law or regulation.
Transmit, distribute, publish, post, store, link, or otherwise traffic in information, software, or material that:
i. Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts.
ii. Encourages, glorifies, incites, or promotes illegal activity or drug use, excessive, violence or cruelty, or Ponzi-type schemes.
iii. Is fraudulent or facilitates phishing, hacking, or identity theft, or attempts to impersonate the identity of a third party.
iv. Infringes upon a third party business, contractual, privacy, or fiduciary right or improperly exposes trade secrets.
v. Contains malicious applications or code of any type.
vi. Makes or facilitates any form of computer, server, or network attack or disruption.
vii. Compromises, disrupts, or degrades the normal and proper operation of any computer, server, or Internet system, including EMW Hosting’s systems.
Send, post, host, or enable any types of mail-bombs or SPAM (“SPAM” is defined as any type of unsolicited e-mail that does not utilize “Double Opt-In/Single Opt-Out” methodologies).
Use or provide open proxies or Internet Relay Chat (“IRC”).
Host Camfrog servers or other server applications that are frequent targets of Denial of Service attacks or other types of attacks.
III. ACCEPTABLE USE
i. You agree that you will at all times keep your Contact Information accurate, complete, and up-to-date;
ii. You understand that your failure to do so may result in suspension of all of your EMW Hosting Services or termination of all of your EMW Hosting Services and this Agreement; and
iii. You understand that you will be solely liable for your inability or failure to receive e-mail or other communications from us due to your failure to keep your Contact Information accurate, complete, and up-to-date.
By providing us with your e-mail address, you thereby agree that we may send you service-related or other notices by e-mail rather than by postal mail.
You agree that you will not share your account passphrase, password, security question answers, or any other confidential information about your account with any other person or persons, that you will be solely liable for any actions taken by such person or persons, and that we will not be liable for any actions taken by such person or persons.
If you provide us with a business name for your account, we will consider that business to be the owner of the account and may require certain change authorizations from an officer (if a corporation), authorized member (if a limited liability company), partner (if a partnership), or owner (if a sole proprietorship) of the business. If you do not provide us with a business name for your account, we will consider you to be the owner of the account and we may require certain change authorizations from you.
You understand and agree that (a) EMW Hosting or any applicable licensor retains all rights, title, and interest in and to any computer programming, formatting code, operating instructions, or other software used in providing the EMW Hosting Services to you (“Programming”); and (b) that you will not reverse engineer, disassemble, decompile, or otherwise attempt to derive any source code of the Programming.
You understand and agree that we may access your server without notice to you in the event of an actual or suspected violation of this Agreement or to otherwise maintain and protect the security and reliability of our network. You also agree to keep your administrative access credentials up to date.
You understand and agree that if you do not respond within three (3) calendar days to a EMW Hosting-generated abuse-related inquiry sent to you that, in addition to other rights we have under this Agreement or otherwise, at the end of the three (3) calendar days EMW Hosting may suspend all of your EMW Hosting Services or terminate all of your EMW Hosting Services and this Agreement without further notice or obligation to you.
You understand and agree that initiating a “chargeback” to your credit card, to your PayPal® account for EMW Hosting Services charged to you shall be a violation of this Agreement.
You agree to conduct yourself in a professional manner at all times when interacting with EMW Hosting employees. We believe keeping our employees happy will get customers happy as well.
You understand and agree that abusing EMW Hosting employees, whether by lying, cursing, yelling, threatening, or otherwise, whether over the telephone, via e-mail or chat, or when submitting on-line tickets, shall be a violation of this Agreement and may be grounds for suspension of all of your EMW Hosting Services or termination of all of your EMW Hosting Services and of this Agreement. In addition, making threats of physical violence, either against EMW Hosting, its facilities, or any of its shareholders, directors, officers, employees, contractors, or agents will be promptly reported to the authorities and will be grounds for immediate termination of this Agreement.
IV. FEES AND BILLING
You agree to pay for the applicable fee or fees for each of the EMW Hosting Services you order or select, including but not limited to all setup fees, monthly fees, quarterly fees, annual fees, usage fees, web traffic fees, late fees, hourly-rate fees, or other fees.
You may select monthly billing, quarterly (every three (3) months) billing, semi-annual (every six (6) months) billing, or annual billing for your account. You may qualify for advertised price discounts (“Prepayment Discounts”) if you select a quarterly, semi-annual, or annual billing for your account. We will accept payment by credit card, check, e-check, PayPal®, or wire transfer, except that (a) customers paying by check or wire transfer will be charged an additional processing fee of $10.00 for each payment made; and (b) customers paying by wire transfer will be charged a wire transfer fee of $10.00 for each payment made. We prefer PayPal credit for security and ease of usage for our clients.
Applicable setup fees and the fees due for your first service term (first month, first quarter, first six (6) months, or first year) are both due on the initial start date of your EMW Hosting Services. EMW Hosting may change the pricing for new EMW Hosting Services at any time and for existing EMW Hosting Services at the beginning of any new billing term.
You understand and agree that no refunds or reimbursements, in full or in part, will be paid to you at any time.
Each of your EMW Hosting Services will renew automatically. If you select monthly billing, each of your EMW Hosting Services will automatically renew on the one (1) month anniversary date of the start or last renewal date of that EMW Hosting Service. If you select quarterly billing, each of your EMW Hosting Services will automatically renew on the three (3) month anniversary date of the start or last renewal date of that EMW Hosting Service. If you select semi-annual billing, each of your EMW Hosting Services will automatically renew on the six (6) month anniversary date of the start or last renewal date of that EMW Hosting Service. If you select annual billing, each of your EMW Hosting Services will automatically renew on the one (1) year anniversary date of the start or last renewal date of that EMW Hosting Service. Each monthly, quarterly, semi-annual, or yearly anniversary date shall be a “Renewal Date.”
On the Renewal Date of each of your EMW Hosting Services, your credit card, PayPal® account, or bank account will be automatically charged for the cost of renewing the applicable EMW Hosting Service(s) through its next Renewal Date. If EMW Hosting does not have valid credit card or current PayPal® or ACH instructions/banking information on file for your account on a Renewal Date, your EMW Hosting account will be automatically charged for the cost of renewing the applicable EMW Hosting Service(s) through its next Renewal Date and you will be liable for those fees.
You are liable for all unpaid amounts due on your account even if EMW Hosting terminates your EMW Hosting Services or this Agreement partway through a billing term. EMW Hosting may charge your account late fees for overdue payments and EMW Hosting may charge you interest on unpaid balances at the rate of 1.5% per month or the maximum rate allowed by law. In addition, your equipment, domains, web content, or other assets may be retained by EMW Hosting as collateral for unpaid charges and penalties until such charges and penalties are paid in full. Also, EMW Hosting may use a third-party service to collect unpaid amounts and may charge you attorneys, collection, or other reasonable fees incurred to collect unpaid balances.
If you elect to change your payment term at a time that is not within the Conversion Window (defined below), (a) a ticket requesting the change must be submitted as a ticket at ServerPortal.com at least seven (7) days before the end of your current billing term; (b) the change will not take effect until after the end of your current billing term; and (c) no Prepayment Discounts applicable to your old billing term will apply to your new billing term. For example, if you elect to change from annual billing to monthly billing (a) the change will only take effect at the end of your current annual term; and (b) you will no longer receive the Prepayment Discounts applicable to annual billing.
If you dispute a billing charge, to avoid interruption of your EMW Hosting Services you must (a) pay the entire amount invoiced to you by its due date; and (b) notify EMW Hosting about the disputed billing charge within thirty (30) days. If EMW Hosting validates your claim, your account will be credited with the validated amount.
You specifically understand and agree that for each (a) returned check; or (b) EMW Hosting fee that you “chargeback” to your credit card, to your PayPal® account that will be liable to EMW Hosting (and EMW Hosting may collect from you) a “Returned Check Fee” or “Chargeback Fee,” as the case may be, in the amount of $35.00.
Charges for bundled EMW Hosting Services will be “unbundled” if you cancel any part of the bundle of EMW Hosting Services. For example, if you receive a free SSL certificate as part of a “bundled” package and you then cancel one or more of the “bundled” services in your selected package you will be charged at that time for the SSL certificate.
You understand and agree that you are responsible for any network bandwidth charges, memory over usage charges, or other overage charges you incur for using the EMW Hosting Services, even if such overages arise because your server or account is compromised or “hacked.”
You understand and agree that you will be automatically be assessed a charge of $50.00 for (a) each IP address assigned to your account that, in EMW Hosting’s reasonable discretion, is blacklisted or, if your account is closed, was blacklisted; and for (b) each IP address which was blacklisted because of your action or inaction, even if it was not assigned to your account or if your account has been closed.
EMW Hosting will not be liable for any claim, charge, or other liability of any type related to the EMW Hosting Services after a period of one (1) year from when the specific EMW Hosting Services were provided.
You understand and agree that EMW Hosting will manually reboot your servers three (3) times each calendar month at no charge, but that for each additional manual reboot of your servers EMW Hosting will automatically charge you $5.00.
This Section 4 is not applicable to EMW Hosting Cloud Services.
V. TERM AND TERMINATION
This Agreement will become effective when:
i. When EMW Hosting “click-through” agreements, when you “Accept” online the agreement into which this Agreement is incorporated.
ii. For EMW Hosting agreements you physically sign, when you affix your signature and return the executed agreement to EMW Hosting.
iii. For EMW Hosting agreements you sign electronically, when the electronic signature process is complete.
This Agreement will remain in effect until it is cancelled or terminated under its terms. Cancellation or termination of the Agreement will automatically terminate each agreement into which it is incorporated.
i. Sections 1.2, 3.2, 3.5, 3.6, 3.8, 3.9, 4.1-4.4, 4.6–4.7, 4.9-4.14, 5.1, 5.3, 6.2, 6.3, 6.6, 7.2, 8, 9, and 10 shall survive cancellation or termination of this Agreement
VI. CANCELLATION
If you do not cancel a EMW Hosting Service at least seven (8) days before 12:00:01 a.m. on its Renewal Date your account will automatically be charged in full for the cost of renewing the EMW Hosting Service through its next Renewal Date, except that if the EMW Hosting Service had a quarterly, semi-annual, or annual billing term, you may convert the EMW Hosting Service to monthly billing until 12:00:01 a.m. CST on the seventh day after your Renewal Date (“Conversion Window”). Once you have converted to monthly billing, your account will continue to be billed on your monthly Renewal Date at the new monthly rate until otherwise cancelled or terminated under this Agreement. To convert your billing term during this Conversion Window, you must submit a ticket to Billing in ticketing system.
If you convert your EMW Hosting Service to monthly billing during the Conversion Window (a) you will lose all Prepayment Discounts; but (b) you may be eligible to receive a pro-rata refund of charges you paid for the renewal term (or a credit for charges you have not yet paid), less the charges for your first monthly payment at the new monthly rate. If you do not convert your EMW Hosting Service to monthly billing during the Conversion Window, you will not be eligible to receive a refund (or a credit for charges you have not yet paid), in full or in part, for any of the amount charged to you on your Renewal Date.
EMW Hosting may unilaterally terminate your EMW Hosting Services and this Agreement at anytime for any reason without compensation to you upon eight (8) days written notice to you sent to the address or e-mail address you currently have on file with EMW Hosting. Also, EMW Hosting may refuse to open a new account for any person or entity.
EMW Hosting may, immediately and without notice or obligation to you, unilaterally suspend all of your EMW Hosting Services or terminate all of your EMW Hosting Services and this Agreement if
i. Payment for EMW Hosting Services is not received by the Renewal Date of the start or last renewal date of any EMW Hosting Service or
ii. We determine, in our sole discretion, that you have or it is alleged that you have otherwise violated this Agreement.
You understand and agree that upon cancellation or termination of your EMW Hosting Services and this Agreement that EMW Hosting has the right to immediately bar your access to your server or account and/or delete any and all content on or related to your server or account.
This Section 6 is not applicable to EMW Hosting Cloud Services.
VII. LIMITATIONS
IN NO EVENT WILL EMW HOSTING’S LIABILITY TO YOU IN THE AGGREGATE FOR ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT OR AN AGREEMENT INCORPORATED INTO THIS AGREEMENT OR FOR AN AGREEMENT INTO WHICH THIS AGREEMENT IS INCORPORATED BE EQUAL TO AN AMOUNT GREATER THAN THE FEES PAID BY YOU TO EMW HOSTING DURING THE ZERO POINT FIVE (0.5) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM OF LIABILITY.
IN NO EVENT WILL EMW HOSTING, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, CONTRACTORS OR EMPLOYEES BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES FOR ANY THIRD PARTY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOSS OF USE, OR INTERRUPTION OF BUSINESS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR AN AGREEMENT INCORPORATED INTO THIS AGREEMENT OR FOR AN AGREEMENT INTO WHICH THIS AGREEMENT IS INCORPORATED WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF EMW HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
i. YOU ACKNOWLEDGE THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS EMW HOSTING WOULD NOT ENTER INTO THIS AGREEMENT.
WE DO NOT WARRANT THAT THE EMW HOSTING SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET YOUR REQUIREMENTS. THE EMW HOSTING SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. YOU UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE EMW HOSTING SERVICES, AND YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICIALLY SET FORTH HEREIN. ALL EMW HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE DEEMED ACCEPTED WHEN DELIVERED.
YOU HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS YOU MAY HAVE TO A TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHERWISE.
You agree to indemnify, defend by counsel reasonably accepted to EMW Hosting, and protect and hold EMW Hosting harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants’ and attorneys’ fees and court costs, demands, causes of action, judgments, etc. directly or indirectly arising out of or related to the EMW Hosting Services.
Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between you and EMW Hosting other than as set forth herein. Also, neither party to this Agreement shall have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other.
VIII. PROMOTIONS
For any new services started that receive a discount covered by any promotion, and then within the first 30 days are canceled will be billed at our standard, non-discounted fee.
Discounts are available for new services only, and cannot be applied to existing services.
Existing services that are cancelled and reordered are not eligible to receive the current discounted rate.
IX. MISCELLANEOUS
This Agreement is the final expression of the agreement between you and EMW Hosting regarding the EMW Hosting Services. This Agreement may not be modified or amended, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by you and EMW Hosting.
EMW Hosting’s waiver of your breach of any portion of this Agreement shall not operate or be construed as its waiver of any subsequent breach of the same provision or any other portion of this Agreement and no remedy available to EMW Hosting hereunder is exclusive of any other remedy available to EMW Hosting hereunder or otherwise available at law or in equity.
If any provision of this Agreement or its application is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect enforced to fullest extent consistent with applicable law.
You agree that you will not solicit EMW Hosting employees as your employees or contractors. You represent and warrant that you have full power to enter into this Agreement and any agreement into which this Agreement is incorporated by reference.
The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
EMW Hosting shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the EMW Hosting Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond our reasonable control.
This Agreement shall be binding on you and EMW Hosting and your or its successors and assigns, and shall be governed by the laws of the state of California without giving effect to such laws’ provisions regarding conflict of laws. Any action arising out of or related to this Agreement shall be brought in the California state courts located in San Francisco County, California, USA or the Federal court located in Sacramento, CA, USA and each party consents to the jurisdiction and venue of these courts. Each party expressly disclaims application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.