OPENSOURCEHOST Terms of Service Agreement

This Agreement defines the terms and conditions of OPENSOURCEHOST’s services as listed on http://opensourcehost.com/services.html as (the "Services"). OPENSOURCEHOST will provide the Services selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement.  You certify that you are at least 18 years of age. To become a OPENSOURCEHOST accountholder, you must read and agree to be bound by all terms and conditions of this Agreement, the fee schedules and any policies that are or may be published by OPENSOURCEHOST.

This Agreement will become effective when accepted by OPENSOURCEHOST. OPENSOURCEHOST may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services.  Payments must be submitted in advance of receiving the Services.

As part of the Services, OPENSOURCEHOST will provide your own web-based Customer Management Interface (the "Customer Manager") which is located at https://my.opensourcehost.com.  The Customer Manger contains customer contact information, billing information, product information, product logins, and customer support information.

You agree to provide OPENSOURCEHOST with accurate contact and billing information, including your legal name, address, telephone number, e-mail address and to update this information immediately in your Customer Manager if any changes occur.

1. Scope of services and Obligations

1.1.  Web Hosting

1.1. A.  You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. OPENSOURCEHOST assumes no responsibility to provide you with such knowledge.

1.1. B.  You agree to comply with the requirements of the Digital Millennium Copyright Act (the "DMCA") and acknowledge that OPENSOURCEHOST is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. ? 512. Consistent with the DMCA, OPENSOURCEHOST will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, OPENSOURCEHOST has a policy of terminating accountholders who are repeat copyright infringers.

1.1. C. OPENSOURCEHOST offers a 30 day money back guarantee to a customer's first Web Hosting account purchased (including setup fees).  All added features to your Web Hosting account are nonrefundable.  Annual contract commitments are excluded from this offer.

 1.1. D. If you secure your account with a credit card, you acknowledge that OPENSOURCEHOST BILLING will bill your credit card prior to receiving service. You authorize automatic billing by OPENSOURCEHOST BILLING on an on-going basis during the term of this Agreement. OPENSOURCEHOST BILLING will display on your credit card statement for the charges for the SERVICE. If you wish to cancel your service, you must do so prior to your next due date to avoid being charged for additional month(s) of service.

1.1. E. Delinquent accounts are those that remain unpaid at the next due date. The Services will be suspended if your account is delinquent for 28 days. Notwithstanding any other rights OPENSOURCEHOST may have in this Agreement, all of your website contents will be destroyed if your account is delinquent for 45 days. OPENSOURCEHOST accounts continue to accrue charges while they are delinquent or if the Services are suspended.

1.1. F. If you wish to cancel your Web Hosting account, you must do so prior to your next due date to avoid being charged for additional month(s) of service. You may cancel your OPENSOURCEHOST services by selecting ‘Change Renewal Options-Cancel this Product’ within your Customer Manager which is located at https://my.opensourcehost.com.

1.1. G. OPENSOURCEHOST does not offer a prorated refund based on the early cancellation of your services. If you are on a multi-month payment interval and wish to cancel a service prior to the end of the term, you will forfeit any money paid for the services. Once money has been received on an account, this account will be considered under contract for the service provided by OPENSOURCEHOST for the term of agreement. This policy is in effect for all accounts at OPENSOURCEHOST.

1.2 Domain Registration

1.2. A.  In connection with requesting that OPENSOURCEHOST assist you with registration services, you represent and warrant the following: (a) the registration you have asked OPENSOURCEHOST to make is not made with a "bad faith intent" (as that term is used in the Anticybersquatting Consumer Protection Act, 15 U.S.C. ? 1125(d)); (b) the Domain Name does not conflict with another domain name; (c) to your knowledge, the registration of the Domain Name will not infringe upon or otherwise violate the rights of any third party; (d) you are not seeking registration for an unlawful purpose; (e) you will not use the Domain Name to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, such as "netiquette"; and (f) you will not knowingly use the Domain Name in violation of any applicable laws or regulations, for any slanderous purposes, or in connection with the distribution or receipt of child pornography. It is your responsibility to determine whether the Domain Name registration infringes or violates someone else's rights. You represent and warrant that all information provided by you in connection with your Online Order form is complete and accurate. OPENSOURCEHOST makes no representation or warranties of any kind regarding the availability, or the propriety of any use of, any Domain Name requested by you. OPENSOURCEHOST does not represent or warrant that its services in connection with registration of the Domain Name will prevent challenges to the Domain Name or shield you in any way for liability for the use of the Domain Name.

1.2. B.  OPENSOURCEHOST is bound to use ICANN's dispute policy if any person challenges the registration of the Domain Name you have selected (the "Dispute Policy"), which can be found at http://www.icann.org/dndr/udrp/policy.htm You agree that OPENSOURCEHOST, in its sole discretion, may cancel, transfer, suspend or otherwise make changes to the domain registration if OPENSOURCEHOST (a) is in any way involved in a proceeding in connection with the Dispute Policy, (b) receives any order from any court or arbitral tribunal threatening or requiring such action, or (c) determines that you have breached any of your representations and warranties in Section 1.2. You understand that OPENSOURCEHOST has no obligation to defend you in the event any dispute arises in connection with the Domain Name.

1.2 C. As consideration for OPENSOURCEHOST's domain name registration services, you agree to pay all applicable registration fees and renewal fees. Such registration fees and renewal fees are non-refundable. You agree that OPENSOURCEHOST will attempt to collect payment for a one year renewal of your domain name registration 15 days prior to its expiration date and renew your domain name accordingly, unless you select to 'Change Renewal Options-Set to Let Expire' through your Customer Manager, located at https://my.opensourcehost.com. If OPENSOURCEHOST is unable to collect payment for your domain name registration, your domain name registration will not be renewed. To renew your domain name manually, login to your Customer Manager located at https://my.opensourcehost.com.  If you do not pay the renewal fees by the time specified in the renewal notice, your registration will expire.  You agree that OPENSOURCEHOST will have no liability whatsoever with respect to any such expiration and that OPENSOURCEHOST may transfer the Domain Name in the event of any delinquency in payment.

2.  Limitation of Liability and Indemnification

2.1.  IN NO EVENT SHALL OPENSOURCEHOST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF OPENSOURCEHOST SERVICES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE OPENSOURCEHOST'S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OPENSOURCEHOST'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF OPENSOURCEHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OPENSOURCEHOST'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO OPENSOURCEHOST FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OPENSOURCEHOST'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

2.2. You agree to indemnify, defend and hold OPENSOURCEHOST and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto OPENSOURCEHOST's servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, child pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to OPENSOURCEHOST's equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by OPENSOURCEHOST's gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.

3. Arbitration; Governing Law

3.1. Except for OPENSOURCEHOST's compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by OPENSOURCEHOST pursuant to Section 4(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of OPENSOURCEHOST's servers, such controversy or dispute shall first be presented for resolution by OPENSOURCEHOST and you. If no resolution is reached within 7 days thereafter, then such controversy or dispute shall be resolved by binding arbitration in Columbus, Ohio, under the then-current rules of commercial arbitration of the American Arbitration Association. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the State of Ohio (without regard to conflicts of laws principles).

3.2 You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in Columbus, Ohio, for any action, suit or proceeding arising out of or relating to this agreement.

4. OPENSOURCEHOST's Right to Terminate Agreement

4.1.  OPENSOURCEHOST reserves the right to suspend or terminate the Services to you and remove or prevent access to any OPENSOURCEHOST servers at any time, without prior notice or liability, for any conduct that OPENSOURCEHOST, in its sole discretion, believes violates this Agreement or is otherwise harmful to OPENSOURCEHOST's interests or the interests of other accountholders. (b) OPENSOURCEHOST also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, or other judicial or equitable relief (and, pending such action, to suspend all access to OPENSOURCEHOST servers) if any third-party claim is made that your content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.

5. Miscellaneous

You may not assign your rights and obligations under this Agreement without the prior written consent of OPENSOURCEHOST, which may be withheld at OPENSOURCEHOST's discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of OPENSOURCEHOST to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by OPENSOURCEHOST of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by OPENSOURCEHOST. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and OPENSOURCEHOST and supersede and govern all prior proposals, agreements, or other communications.

6. Other Policies and Agreements

By accepting this agreement you also agree to our Acceptable use Policy (AUP) listed below.

Acceptable Use Policy

Use and Misuse of the Services

All complaints of abuse, violation and misuse of the Services shall be investigated promptly. If you are not sure if your actions will be an abuse, violation or misuse, please ask first: abuse@OPENSOURCEHOST. You are responsible for all use of your website, with or without your knowledge or consent. You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating U.S. export restrictions; stalking; or violating other state or federal law, such as the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act. Linking to illegal material is also prohibited. When OPENSOURCEHOST becomes aware of possible violations of this Agreement, OPENSOURCEHOST may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on OPENSOURCEHOST's servers. OPENSOURCEHOST, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject you to criminal or civil liability.

  BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD OPENSOURCEHOST HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY OPENSOURCEHOST AS PART OF ITS INVESTIGATIONOF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM OPENSOURCEHOST AS A RESULT OF OPENSOURCEHOST'S DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OPENSOURCEHOST'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.

Use and Misuse of Materials

Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain. You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. You may not post, upload or otherwise distribute copyrighted material on OPENSOURCEHOST'S servers without the consent of the copyright holder. Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX. OPENSOURCEHOST supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, OPENSOURCEHOST will not substitute itself for a court of law in deciding tort claims raised by the third party.

Email Use

Unacceptable affronts to netiquette and unacceptable activities include, but are not limited to, the following: spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off-topic advertising in newsgroups); spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you); passive spamming (promoting a website hosted by OPENSOURCEHOST by spamming from some other source); trolling (posting controversial messages in newsgroups to generate responses); mailbombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user; propagating chain letters; and subscribing someone else to an electronic mailing list without that person's permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages. Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email. If you are repeatedly mailbombed or attract such behavior, the Services will be terminated. You should not send email to any user who does not wish to receive it, either at OPENSOURCEHOST or elsewhere. OPENSOURCEHOST recognizes that email is an informal medium; however, you must refrain from sending further email to a user after receiving a request to stop. You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages. OPENSOURCEHOST may disclose the usernames of accounts responsible for forged email messages to system administrators or users requesting the information. Violations of the OPENSOURCEHOST policies outlined herein can sometimes result in massive numbers of email responses. If you receive so much email that OPENSOURCEHOST resources are affected, OPENSOURCEHOST staff may shut down your mailbox.

System Security

You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at OPENSOURCEHOST or at any other site. Use or distribution of tools designed for compromising security or containing viruses or trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools. If you are involved in violations of system security, OPENSOURCEHOST reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. OPENSOURCEHOST will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.

System Resources

System abuse includes any use of OPENSOURCEHOST resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space. Further, running programs in the background on a OPENSOURCEHOST server without OPENSOURCEHOST's prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of OPENSOURCEHOST's servers.