TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (TOS= is a formal and legally binding agreement between //Orbiting Solutions, LLC (AvekHost.com)// (we, Compan=) and you, the service user (you, Subscriber). Use of our service constitutes=acceptance and agreement to the TOS in full.
I) Purpose and Overview of the TOS
II) Specific Violations of the TOS
IV) Network Performance
V) Payment Policy<=p>
VI) General Operations
VII) Violation Reporting<=span>
VIII) Violation Procedures
IX) Miscellaneous Provisions
I) PURPOSE AND OVERVIEW OF THE TOS
The TOS is provided to give our Subscribers and users a clear understanding of what we expect of them while using our services. All users of our services including those who access our services but do not have accounts, as well as those who pay a service fee to subscribe to the services, must comply with our TOS.
We support the uncensored flow of information and ideas over the Internet and do not actively monitor subscri=er activity under normal circumstances. Similarly, we do not exercise editorial control over the content of any website, e-mail transmission, newsgroups, or other material created or accessible over or through the services, except f=r certain proprietary websites. However, in accordance with our TOS, we may remove any materials that, in our sole discretion, may be illegal, may subj=ct us to liability, or which may violate the TOS. We may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrongdoing. Your violation of the TOS may result in =he suspension or immediate termination of your account without prior notice.
The following are guidelines for the establishment and enforcement of the TOS:
-Ensure reliable service to our customers
-Ensure security and privacy of our systems and network, as well as the networks and systems of others
-Comply with existing laws
-Maintain our reputation as a responsible service provider
-Encourage responsible use of the Internet and discourage activities which reduce the usability and value of Internet services
-Preserve the value of Internet resources as a conduit for free expression and exchange of information=/o:p>
-Preserve the privacy and security of individual users
While we are committed to the princilpes of free speech, certain activities that may be damaging to the resources of both us and the Internet and cannot be permitted under the guise of free speech. The resources of us and the Internet are limited, and abuse of thes= resources by one user has a negative impact on the entire community.
We do not routinely monitor the acti=ity of accounts except for measurements of system utilization and the preparati=n of billing records. However, in our efforts to promote good citizenship within=the Internet community, we will respond appropriately if we become aware of inappropriate use of our service.
If you violate the TOS, we reserve t=e right to terminate your service without notice. We prefer to advise Subscri=ers of inappropriate behavior and any necessary corrective action, however, flagrant violations of the TOS will result in immediate termination of serv=ce. Our failure to enforce this policy, for whatever reason, shall not be const=ued as a waiver of our right to do so at any time.
II) SPECIFIC VIOLATIONS OF THE TOS
By using our services you agree not =o commit any of the following specific violation of the TOS. The following constitute specific violations of the TOS:
Illegal use: Our services may not be used for illegal purposes, or in support of illegal activities. We reserve =he right to cooperate with legal authorities and/or injured third parties in t=e investigation of any suspected crime or civil wrongdoing. If anything is not legal in the United States of America, it is not permitted to reside on our servers. If illegal content or usage is found, the account will be suspended and/or terminated. Subscriber agrees that the Company may disclose any and =ll subscriber information including assigned IP numbers, account history, acco=nt use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber.
Harm to minors: Use of our service to harm, or attempt to harm, minors in any way, including, but not limited to child pornography is prohibited. Violation of this policy will result in immediate termination of your service and a report will be made to law enforcement authorities.
Threats: Use of our service to trans=it any material (by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property is prohibited.
Harassment: Use of our service to transmit any material (by e-mail, uploading, posting or otherwise) that harasses another is prohibited.
Fraudulent activity: Use of our serv=ce to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as “pyramid schemes,” &qu=t;ponzi schemes,” and “chain letters” is prohibited This also includes any knowing misrepresentation or misleading statement, writing or activity made with the intent that the person receivi=g it will act upon it.
Forgery or impersonation: Adding, removing or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by u=ing forged headers or other identifying information is prohibited. Forging any message header, in part or whole, of any electronic transmission, originati=g or passing through our service is in violation of the TOS. The use of anony=ous remailers or nicknames does not constitute impersonation.=/p>
Unsolicited commercial e-mail/Unsolicited bulk e-mail (SPAM): Use of our service to transmit any u=solicited commercial or unsolicited bulk e-mail is expressly prohibited. Violation of this SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, we will initiate an investigation. Du=ing the investigation, we may restrict Subscriber access to the network to prev=nt further violations. If a Subscriber is found to be in violation of our SPAM policy, we may, at our sole discretion, restrict, suspend or terminate the Subscriber’s account. Further, we reserve the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. We will notify law enforcement officials if the violation is believed to be a criminal offense. Anyone using our service to host website= or services that support spammers or cause any of our IP
space=span style=’font-size:10.0pt;line-height:115%;font-family:”Times New Roman”,”s=rif”‘> to be listed in any of the various Spam Databases will have their account(s) immediately suspended. The account will not be unsuspended until such time =hat you agree to remove any and all traces of the offending material immediately upon reconnection. First violations of this policy will result in an “Administrative Fee” of $25 and your account will be reviewed for possible immediate termination. Severe violations may result in immediate a=d permanent removal of the account(s) from our network without notice to the customer. A second violation will result in an “Administrative Fee&quo=; of $100 and immediate termination of your account.
E-mail/News Bombing: Malicious inten= to impede another person’s use of electronic mail services or news will result=in the immediate termination of the offending account.
Usenet Abuse/Spamming: We have a zero tolerance policy for the use of our service for the posting of messages or commercial advertisements which violate the rules, regulations, or charter =f any newsgroups or mailing list. Commercial messages that are appropriate un=er the rules of a newsgroup or mailing list or that are solicited by the recipients are permitted.
Unauthorized access: Use of our serv=ce to access, or to attempt to access, the accounts of others, or to penetrate= or attempt to penetrate, security measures of ours or another entity’s computer software or hardware, electronic communications system, or telecommunicatio=s system, whether or not the intrusion results in the corruption or loss of d=ta, is expressly prohibited and the offending account is subject to immediate termination. You may not attempt to circumvent user authentication or secur=ty of any host, network or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server=or account you are not expressly authorized to access, or probing the security=of other networks. Use or distribution of tools designed for compromising secu=ity is prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools. Violat=ons of system or network security may result in civil or criminal liability. We will investigate occurrences, which may involve such violations and may involve, and operate with, law enforcement authorities in prosecuting users=who are involved in such violations.
Copyright or trademark infringement:=Use of our service to transmit any material (by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to,=the unauthorized copying of copyrighted material, the digitization and distribu=ion of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software is prohibited. This also includes intellectual property rights. Distribution and/or posting of copyrighted or the aforementioned infringements will not be tolerated.
Collection of personal data: Use of =he service to collect, or attempt to collect, personal information about third parties without their knowledge or consent is prohibited.
Network disruptions and unfriendly activity: Use of the service for any activity which affects the ability of other people or systems to use our services or the Internet is prohibited. =his includes “denial of service” (DOS) attacks against another network host or individual user. Interference with or disruption of other network users, services or equipment is prohibited. This includes, but is not limit=d to: “flooding” of networks, deliberate attempts to overload a service, and attempts to “crash” a host. It is the Subscriber’s responsibility to ensure that their account(s) are configured in a secure manner. A Subscriber may not, through action or inaction, allow others to u=e their account for illegal or inappropriate actions. A Subscriber may not pe=mit their account, through action or inaction, to be configured in such a way t=at gives a third party the capability to use their account in an illegal or inappropriate
manner. Unauthorized entry and/or use of another company and/or individual’s comput=r system will result in immediate account termination. We will not tolerate a=y Subscriber attempting to access the accounts of others, or penetrate securi=y measures of other systems, whether or not the intrusion results in corrupti=n or loss of data. We reserve the right, to drop the section of IP space invo=ved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your account, or if denial of service attacks are originating from your account. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soo= as is feasible.
Distribution of Viruses: Intentional distributions of software or anything that attempts to and/or causes damage, harassment, or annoyance to persons, data, and/or computer systems are prohibited. Such an offense will result in the immediate termination of the offending account.
Inappropriate Use of Software: Use of software or any device that would facilitate a continued connection, i.e. pinging, while using our services could result in suspension of service.
IRC networks: It is forbidden to host IRC (Internet Relay Chat) that is part of or connected to another IRC netwo=k or server. Accounts found to be connecting to or part of these networks wil= be immediately suspended without notice. The account will not be unsuspended u=til such time that you agree to remove any and all traces of the offending mate=ial immediately upon reconnection. Severe violations may result in immediate and permanent removal of the account(s) from our network without notice to the customer. Any user who commits a second violation will be immediately and permanently removed from our network without notice.
Streaming Video and Audio: Streaming Video and Audio is not permitted on our servers. You must zip the content to prevent this if you wish to have it hosted, and like everything else this content must be legal and in compliance with our copyright guidelines.=/o:p>
Eggdrop Scripts: Eggdrop scripts/bots and IRC bots of a=y type are not allowed, these are grounds for immediate account deletion.
Adult Material: Adult Material is not allowed, unless specified in your package deal. If a website is found to contain adult material that is not on an adult approved server/package, the website will be suspended.
Objectionable Material: You may not =se our service to publish material, which we determine, at our sole discretion= to be unlawful, indecent or objectionable. For purposes of this policy, “material” refers to all forms of communications including but not limited to: narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executa=le programs, video recordings, and audio recordings. If you are unsure if your content is objectionable, please contact us before posting it.
Chinese Forums: Chinese Forums are n=t allowed on our network. These sites require too much CPU usage. They typica=ly require a dedicated server to run properly. If they are found on any server=we will suspend and/or terminate them.
ANIME: Anime websites are not allowe= on our network. If an Anime website is found we will terminate the account. Th=se sites are not allowed on our servers because most of them are illegal, and almost inevitably cause server problems.
Demo Accounts: Due to the potential =f a security breach, or malicious activity aimed at our network, control panel =emo accounts are not allowed. We recommend linking directly to the control panel maker’s website for their demo.
Use of our service by minors: Persons under the age of eighteen (18) must have permission from their parent/guard=an to use our services. By signing up for our service, you agree that you are =ver the age of eighteen, OR your parent/guardian has permitted you to do so and=has read and agreed to the TOS, and has accepted responsibility for any actions=you may take as a minor under their custody.
By using our services you agree to a=opt adequate security measures to prevent or minimize unauthorized use of your account. Your password provides access to your account. It is your responsibility to keep your password secure. Sharing your password and acco=nt access with unauthorized users is prohibited. You should take care to preve=t others from using your account since you will be held responsible for such =se.
Subscribers will be held responsible=for any activity by third parties using their accounts in a way that violates t=e TOS. You are responsible for any misuse of your account, even if the inappropria=e activity was committed by a friend, family member, guest or employee. Therefore, you must take steps to ensure that others do not gain unauthoriz=d access to your account.
Subscribers who are resellers are responsible for enforcing the TOS to all of their clients. If their clients=are found to be violating the TOS, we will suspend and or/terminate the offendi=g site and let the reseller know. It is advisable that you adopt similar or stricter policies than ours. Our Subscribers may use and/or modify a copy of our TOS for use on their website(s).
IV) NETWORK PERFORMANCE
By using our service you agree to ab=de by this policy. Our services operate on shared resources. Excessive use or abuse of these shared network resources by one customer may have a negative impact on all other customers. Misuse of network resources in a manner which impairs network performance is prohibited by this policy and may result in termination of your account.
You are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact o=her customers or the performances of our systems or networks. This may include certain scripts or forums that put excessive use on the SQL server in a way which degrades performance for other users. We reserve the right to termina=e or limit such activities. Additionally, if your account(s) becomes the targ=t of denial-of-service (DOS or DDOS) or other malicious attacks against the serv=r, we reserve the right to end your service. Accounts may not be used as a download distribution point for your bundled software. They are to be used =or standard web practices only. This means that all content stored on an accou=t must be used for “normal” website use. “Un-normal” usage is anything that a shared server would not be able to provide under standard circumstances. If your account requires resources that are not abl= to be provided by a shared server, we may require you to rent a dedicated serv=r. If you are unsure of whether your account may violate this policy, please contact us prior to subscribing.
V) PAYMENT POLICY
By using our services you agree to t=e following payment policy and instructions.
Refunds: We offer a seven-day money-=ack guarantee. If during the first seven days after subscribing you are unhappy with the service you may submit a refund request. Any such request must be =ade in writing and must be made before the end of seven days from the moment yo=r initial payment was made. In such case your payment will be refunded (less =ny set-up fees or special costs) and your account will be deleted from our net=ork upon refunding. The seven-day money-back guarantee only applies to the first payment made on a new account. After the initial seven-day period, no refun=s will be made at any time for the first payment on a new account. Trial peri=d is only available on the first account activated with us and is not availab=e for each additional account you open and/or activate. All subsequent paymen=s made to us are absolutely non-refundable. If you dispute a charge to your credit card issuer or take any action that results in a payment being rever=ed that, in our sole discretion is a valid charge under the provisions of the =OS, you agree to pay us an “Administrative Fee” of $100. <=span>
Payment/Subscription: Establishment =f this service is dependent upon receipt by the Company of payment of stated charges. We require that all Subscribers use an automatically recurring pay=ent subscription through a payment processor (currently Paypal.com or 2checkout.com). Your recurring subscription must remain active at all times=for your account to remain activated. If a subscription becomes inactive and/or=is cancelled, we will suspend the account and issue a warning to the Subscribe= to their email address on file. If the subscription is not rectified within 7-=ays of the warning we will delete the account from the server. If it is a resel=er account we will also delete any domains “under” the primary account. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable inte=est and any collection fees. We may allow some users to purchase our services w=th a one-time payment or subscription that is not automatically recurring. Any such allowance does not forfeit our right to require any such user to activ=te a recurring subscription at any time.
Cancellation: All cancellations must=be made by the subscriber by canceling their recurring subscription. We will n=t comply with verbal or written requests to cancel accounts. It must be done =y canceling the subscription with the payment processor. Upon notification th=t a subscription has been cancelled we will delete the Subscriber’s accou=t from the server. We will not wait until the end of any advertised or percei=ed billing cycle, and we will not refund any unused portions of any subscripti=n payment. We require that a recurring subscription be active at all times and will therefore delete the account upon termination of the subscription.
Service Rates: Subscriber acknowledg=s that the nature of the service furnished and the initial rates and charges =ave been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The promotional offer is contingent upon Company achieving and maintaining its =ost of service goals including but not limited to rates charged to company by i=s suppliers.
VI) GENERAL OPERATIONS
By using our service you agree to the following policy and limitations pertaining to our services.
Uptime: Subscriber acknowledges that=the service provided is of such a nature that service can be interrupted for ma=y reasons other than the negligence of the Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Subscriber agrees that the Company shall not be liable for any damages aris=ng from such causes. In no event shall the Company be liable for any special or consequential damages, loss or injury. Although many of our own network providers guarantee an uptime of 99% or more, we make no guarantees about uptime performance because we realize there are influencing factors that are outside of our control, and in most cases even outside the control of the data centers and network providers we work with.<=span>
Support Boundaries: We provide techn=cal support to our Subscribers. We limit our technical support to our areas of expertise. We provide support related to your account or virtual site’=s physical functionality. We do not offer tech support for application specif=c issues such as cgi programming, html, or any ot=er such issue. We do not provide technical support for your customers, unless =n outsourced support subscription has been purchased. We provide a variety of support information and options to our Subscribers. These support options c=n be found on the support page of our website.
Abuse of Our Staff or Network Staff: Abuse towards our staff or our network staff will not be tolerated. If you =se foul language, threaten us, or do anything we find offensive, we may suspend and/or delete your account. Per our payment policy we offer no refunds.
Internet Protocol (IP) Address Ownership: If we assign a Subscriber an IP address for the Subscriber’s use, the right to use that IP address shall belong only to us, and Subscriber sh=ll have no right to use that IP address except as permitted by us in our sole discretion in connection with the services. We shall maintain and control ownership of all IP numbers and addresses that may be assigned to Subscribe= by us, and we reserve the right to change or remove any and all such IP numbers and addresses, in our sole and absolute discretion. Our allocation of IP addresses is limited by the policies set forth by ARIN (American Registry f=r Internet Numbers). These policies state that use of IP addresses for IP-bas=d virtual hosts will not be accepted as justification for new IP addresses. W=at this means to you is that you must use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
Bandwidth and Disk Usage: Subscriber agrees that bandwidth and disk usage shall not exceed the quota for the services ordered by Subscriber on the order form (the “Agreed Usage”). We will monitor Subscriber’s bandwidth and disk usage. We have the right to take corrective action if Subscriber’s bandwidth or disk usage exceeds the Agreed Usage in our sole discretion. Such corrective action may include the assessment of additional charges, or disconnection or discontinuance of the service. If we take any corrective action under this section, Subscriber shall not be entitled to a refund of any fees paid in advance prior to such action.
VII) VIOLATION REPORTING
By using our service you agree to re=ort violations of the TOS to us. Anyone who believes that there is a violation =f our TOS should direct such information to us by email immediately. If available, please provide the following information:
The IP address used to commit the alleged violation
The date and time of the alleged violation, including the time zone or offset from GMT
Evidence of the alleged violation
E-mail with full header information provides all of the above, as do system log files. Other situations will require different methods of providing the above information. We may take a=y one or more of the following actions in response to complaints:<=span>
-Issue written or verbal warnings
-Suspend the Subscriber’s newsgroup posting privileges
-Suspend the Subscriber’s account
-Terminate the Subscriber’s account<=:p>
-Bill the Subscriber for administrat=ve costs and/or reactivation charges
-Bring legal action to enjoin violat=ons and/or to collect damages, if any, cause by violations
VIII) VIOLATION PROCEDURES
By using our services you understand=and agree with the following procedures and policies.
We are under no duty to look at each Subscriber’s or user’s activities to determine if a violation of the TOS has occurred, nor do we assume any responsibility through our TOS to monitor or police Internet-related activities.
First violation: Any Subscriber, whi=h we determine to have violated any element of the TOS, shall receive an emai=, warning them of the violation. The service may be subject at our discretion=to a temporary suspension pending a Subscriber’s agreement in writing, to refr=in from any further violations.
Second Violation: Subscribers that we determine to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or terminati=n of service without further notice.
Suspension of Service or Cancellatio=: We reserve the right to suspend network access to any Subscriber if in the judgment of the network administrators the customer’s account is the source=or target of the violation of the TOS or for any other reason which we choose.=If inappropriate activity is detected, all accounts of the Subscriber in quest=on will be deactivated until an investigation is completed. Prior notification=to the Subscriber is not assured. In extreme cases, law enforcement will be contac=ed regarding the activity.
IX) MISCELLANEOUS PROVISIONS
Indemnification: In agreeing to the =OS, Subscriber indemnifies us for any violation of the TOS that results in loss=to us or the bringing of any claim against us by any third-party. This means that=if we are sued because of a Subscriber’s or a customer of a Subscriber’s activ=ty, the Subscriber will pay any damages awarded against us, plus all costs and attorney’s fees.
Contact Information: You must provid= us with, and keep current, good contact information for yourself including an E-mail address and telephone number. If we fail to communicate any informat=on to you due to a non-current, inoperative, or incorrect email address you are still responsible and accountable for any such information we attempted to communicate.
Waiver: A waiver by the Company of a=y breach of any provision of the TOS by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
Assignment: Subscriber shall not transfer or assign the TOS without the prior written consent of the Company. Company may assign the TOS at anytime without consent from or notice to Subscriber. Company reserves the right to cancel Subscriber’s rights under this contract at any time without further obligation.
3rd Party Disclaimer: We take no responsibility for any material input by others and not posted to our websi=e by us. We are not responsible for the content of any other websites linked =o us; links are provided as Internet navigation tools only. We disclaim any responsibility for any such inappropriate use and any liability to any pers=n or party for any other person or party’s violation of this policy.
Disclaimer of warranties: We are not responsible for any damages your business may suffer. We do not make implie= or written warranties for any of our services. We deny any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by us.
3rd Party Software and Services: We =ay provide you access to third party software and/or services (“Third Par=y Products “) through reseller relationships we have established with certain commercial vendors. Subscriber understands that product support for Third Party Products is provided by us and not by the Third Party Vendor, unless otherwise notified. Neither us nor any Th=rd Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. Subscriber expressly acknowledges and agrees that use of third party products is at customer’s sole risk and such third party products are provided “as is” and without representat=on or warranty of any kind from us or any third party vendor, including without limitation, any implied warranty of merchantability, fitness for a particul=r purpose, accuracy or completeness of responses or results, correspondence to description, or non-infringement of third party rights. To the maximum exte=t permitted by applicable law, neither us nor any =hird party vendor will be legally responsible for any damages, whether direct, indirect, or consequential, arising from the use or inability to use any th=rd party product. Subscriber agrees to observe the terms of any license and/or applicable end-user subscriber agreement for third party products and that customer shall be fully liable to third party vendors and us with respect to any improper use of such third party products or violation of license agreements with them and/or applicable end user subscriber agreements. Subscriber agrees not to remove, modify or obscure any copyright, trademark=or other proprietary rights notices that appear on Third Party Products or tha=
appear during the use of Third Party Products. Subscriber further agrees not to reverse engineer, decompile, or disassemble the Third Party Products.<=o:p>
Revisions to the TOS: We reserve the=right to revise, amend, or modify the TOS at any time and in any manner. In such =ase the amended or revised TOS will be posted to our website. Subscriber understands that changes to the TOS shall not be grounds for early contract termination or non-payment.
Location and Severability: The TOS s=all be construed in all respects in accordance with the laws of the State of Michigan. If any part of the TOS is found to be invalid or unenforceable by law, the remainder of the TOS will remain enforceable and in full effect.